R v Consedine [2007] VSCA 253

**3 John Consedine and Rebecca Mifka had been in a relationship for 18 months. He was 21 and she was 20. They were living together in a flat at Shepparton. On 6 March 2004, they went to a 21st birthday party at the Yahoo Bar in Shepparton. They both became intoxicated, Ms Mifka possibly more so than Mr Consedine. Mr Consedine drank and played pool, he became aggressive towards other patrons and was twice asked to leave. Ms Mifka at one point fell asleep on a couch and was carried outside by an unknown male. She woke up in an orchard with a couple of males, unable to recall how she got there. It is not suggested that anything untoward had occurred at this point, however Mr Consedine became aware of the situation and left the Yahoo Bar looking for her.

4 Out in the street, he was struck on the head by yet another unknown person wielding a rod said to look like a golf club. The blow knocked him out for between five and ten minutes. Ambulance and police were called, but apart from submitting to the attentions of the ambulance officers, Mr Consedine refused to go to the hospital and abused the police. He did, however, express his concerns to a number of witnesses that he was looking for his girlfriend. Cameron Meredith, a friend, encouraged him to get a taxi home to Mooroopna, but Mr Consedine was determined to walk. Mr Meredith then called Mr Consedine's brother, who got out**

of bed to come and collect him. On the drive home, Mr Consedine saw Ms Mifka on the roadside. The car was stopped, he got out and, walking straight past Mr Meredith, who was with her, walked directly up to her and punched her twice with his fist, causing her to fall to the ground. Mr Meredith picked her up, Ms Mifka appeared a bit shaken and otherwise unaffected. In the meantime, Mr Consedine had crossed the road and was remonstrating with another male who had seen the assault. Others nearby intervened and that confrontation came to an end. Ms Mifka then crossed the road and approached Mr Consedine from behind, putting her arms around him and urging him to come home. Mr Consedine instead very quickly turned around and punched her either in the face or on the top of the head, and Ms Mifka fell to the ground, striking her head on the gutter. She was knocked unconscious. Mr Consedine was then set upon by five or six of the males who were present and ultimately the police and an ambulance were called.

**5 Ms Mifka was taken first to the Shepparton Hospital and then airlifted to the Alfred Hospital. She underwent emergency surgery for an acute extra-dural haematoma, a sub-arachnoid haemorrhage, a fractured skull and dislocated jaw. The surgery necessitated a substantial incision to the scalp at the top of the forehead to the rear of the skull and involved a craniotomy and an evacuation of the extra-dural haematoma. The medical evidence was that Ms Mifka's condition was life-threatening and, without immediate treatment, she probably would have died.

6 Apart from a Victim Impact Statement dated 27 May 2004 and an addendum dated 22 September 2006, there was no evidence before the court as to the permanency or otherwise of the injuries suffered by Ms Mifka. However her situation is uncertain and, at best, she will need to attend her periodic reviews for some time. It is reasonable to assume that, even if the eventual outcome is extremely favourable, she will be subjected to substantial stress and concern in the meantime and it could well transpire that she has sustained some permanent impairment of physical or mental functioning.

7 The appellant was presented on alternative counts of intentionally and recklessly causing serious injury (counts 1 and 2) in respect of the first assault and similarly in respect of the second assault (counts 3 and 4). In respect of count 1, he was convicted of the statutory alternative of intentionally causing injury and he was convicted in respect of count 3, intentionally causing serious injury. The appellant was sentenced to 12 months' imprisonment in respect of the alternative count not on the presentment and 5 years and 6 months in respect of count 3; orders for partial cumulation produced a total effective sentence of 6 years' imprisonment with a non-parole period of 3 years.

8 Having been granted leave to do so by a judge of this Court on 3 August 2007, he appeals against the sentences so imposed. Although formulated in a number of separate grounds, two propositions have been relied upon. First it was contended that both the individual sentences and the total effective sentence were manifestly excessive and, secondly, that her Honour, in imposing the sentence in respect of count 3, fell into error, in essence because her Honour sentenced on the basis that the appellant intended the entirety of the consequences to and the injuries suffered by the victim.

9 In respect of the second incident the subject of count 3, there was no issue on the evidence that the victim was felled by one punch either to her face or to the top of her head as a result of which she went to the ground, falling on her back and hitting her head on the gutter or kerb. There was no dispute that, in consequence, she suffered serious injury. So much was supported by the evidence of Dr Karro, formerly Registrar in Clinical Forensic Medicine who stated that, given Ms Mifka's unconscious state after the second incident, the striking of the head to the ground was more likely to have resulted in the fractured skull and resultant injuries. With respect to the consequences of the appellant's conduct, her Honour stated -**

Ms Mifka apparently spent a period of time recovering from her brain surgery and then a period of rehabilitation as an in-patient at Royal Talbot Hospital. A Victim Impact Statement made by Ms Mifka on 27 May 2004 and a further statement made by her on 22 November 2005 makes it clear that her life was severely disrupted. She has suffered post traumatic amnesia and depression and years of emotional stress having been subpoenaed on seven occasions to give evidence at your hearing which was postponed. Although I accept that the postponement of the hearing on multiple occasions was not occasioned by you, it would seem that it was only just before the trial began that your counsel agreed with the Crown that Ms Mifka need not be called as a witness. Although her neuropsychological status is unclear she mentions having to be assessed six monthly at Royal Talbot Rehabilitation Centre for a period of five years. Clearly there has been a significant physical, emotional and financial toll suffered by Rebecca Mifka as a result of your offending.

The offence of intentionally cause injury is a serious example of that type of offence and, as I have already stated, the fact that the offence of intentionally causing serious injury was committed after you had already knocked Ms Mifka to the ground previously is an aggravating factor. It is likely that the consequences for Ms Mifka of her very serious head injury are likely to be with her in some form or another for the rest of her life. The huge scar on her skull is an ongoing reminder and to have been attacked by someone who supposedly loved her would be expected to take an emotional toll. As I have said, the extent of any cognitive or behavioural deficit is unknown to me as there is no expert report which has been tendered as to her current status. ...

**10 Her Honour, in her sentencing remarks, very carefully articulated the basis upon which she came to sentence the appellant. The verdict in respect of count 3 reflected the jury finding that the appellant intended to cause serious injury and serious injury resulted from his act. It is apparent from her Honour's sentencing remarks that she directed attention to all relevant principles and factual circumstances relating to both the offences and the offender involved. Her Honour correctly emphasized the seriousness with which the courts must view the deliberate infliction of serious injury, indicating that, in this case, the offence was not only committed shortly after the appellant had assaulted and injured the victim, but could well have resulted in her death.

11 There is simply nothing in any of her Honour's comments in the course of the proceeding or her sentencing remarks that could give rise to any reasonable concern that her Honour may have made the finding that the appellant intended to cause all the injuries sustained by Ms Mifka as ground 3 asserts. Her Honour sentenced the appellant entirely in accordance with the verdict. It follows that this complaint cannot be sustained.

12 The appellant, as I have already indicated, was sentenced to a total effective sentence of 6 years with a non-parole period of 3 years. The base sentence was that of 5½ years imposed in respect of count 3.

13 He was 21 years of age at the time of the offences and 24 at the time of sentencing. He had no prior convictions and he had not come to the attention of the police since the offences. He had a good work record and the support of his family. He had complied with bail conditions which required thrice-weekly reporting until June 2004 and then weekly reporting to the date of trial, a period in excess of 2 years. There had been considerable delay in bringing the matter to trial, principally because the trial was not reached during a number of circuits, although one postponement was granted at the request of the appellant. The overall delay, which no doubt caused considerable distress to the victim and to the appellant, was not attributable to him. Her Honour took all of these matters into account.

14 Her Honour was also required to give due regard to the nature and gravity of the offences here committed and the consequences to the victim. The intentional infliction of injury is understandably regarded very gravely by the courts.[1] Whatever may be the intended extent of the injury to be sustained by the victim of an unlawful assault, the potential for even more serious consequences, including permanent incapacity or the possible death of the victim is very commonly present. More broadly, with respect to violence generally, no properly functioning community can accept the employment of physical force as a tolerable method of the expression of frustration or anger, whether justified or not, as a means of resolving personal disputes. Insofar as they are able to do so and consistent with the application of other sentencing principles, the courts must vindicate the rights of the victim and endeavour to protect the community through sentences designed to deter both generally and specifically.

15 A Victim Impact Statement dated 27 May 2004 and 22 September 2006 was tendered in evidence; the latter being made a week before the further plea and sentence. By reason of the injuries, the consequent surgical intervention and having to undergo a program of rehabilitation, the victim has suffered greatly.

16 Counsel for the respondent submitted, and I agree, that the sentencing judge did not elevate the injuries beyond the degree which the victim suffered. Her Honour had no evidence before her as to any permanent or residual disability which the victim continued to suffer, but it is reasonable to assume that she was understandably concerned by the evidence that the victim initially suffered post-traumatic amnesia and by September 2006 she required six-monthly check-ups over a five year period at the Royal Talbot Hospital. It must also be borne in mind that when considering the seriousness of the appellant's offending, the maximum penalty for intentionally causing serious injury is 20 years' imprisonment.

17 Nevertheless, and notwithstanding her Honour's careful approach to the matter, in a case where the true nature and consequences to the victim of the injuries is unknown, where the delay was not attributable to the appellant and where the victim was not required to give evidence at the trial, I am of the view that the sentence imposed in particular in respect of count 3 is manifestly excessive. In this context, I note that the appellant has no prior convictions, that he is therefore to be regarded as a person of good character, that he has had a stable upbringing and the continued support of his parents and family, he has displayed a good work ethic and thus his prospects for rehabilitation are not only favourable, but achievable. Accordingly, I would uphold this ground and re-sentence the appellant.

18 Taking into account the need to pass a sentence which will address considerations of specific deterrence, which may here be given less weight than might otherwise be the case and general deterrence, and the nature and gravity of the offence, I would sentence as follows:

On count 1 (intentionally causing injury) - 12 months.

On count 3 (intentionally causing serious injury) - 4 years.

19 In order to address the discrete nature of the offending, although the two offences occurred in the one episode, I would order that 6 months of the sentence on count 1 be served cumulatively with the sentence on count 3, that is 4½ years' imprisonment, and fix a non-parole period of 2 years and 9 months.**

[1] I need refer only to the sentencing remarks made by Vincent J (as he was then) in the matter of R v Cansino, Unreported, Supreme Court of Victoria, 11 April 1994, p42-3, where his Honour stated:

The too frequent resort to violence by persons who have encountered problems in their personal relationships has produced strong senses of apprehension and outrage in a society which is not prepared to accept that women and children, in particular, are to be subject to such behaviour.

Through the sentences that they impose, the courts must reflect their recognition of the seriousness of such conduct. The law must be heard to say with crystal clarity that it will not be tolerated. Consistent with the application of other sentencing principles, judges must endeavour through the sentences which they hand down to deter those who would be like minded or may be prepared to release their feelings of frustration and aggression in this manner from engaging in acts of violence of the type which you perpetrated.

See also the judgments of this Court in R v Lacey [2006] VSCA 4, [18], [19] (Vincent JA); and DPP v Ross [2006] VSCA 223, [23] (Maxwell P).