R v Hendy [2008] VSCA 231

CRIMINAL LAW - Appeal - Sentence - Recklessly causing serious injury - Reckless stabbing with knife in response to perceived threat - Manifest excess - Appeal dismissed.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 Lorraine Hendy is a school crossing supervisor. On 3 January 2005, she was at home, babysitting her grandson, Benjamin (known also as 'BJ'). Her son, Benjamin, the applicant in this proceeding and the father of BJ, was also in the house.

2 At about 7.15 pm, Mrs Hendy heard a hard bang on the window. When she opened the door, she saw Timothy Browning standing there. Browning had never visited the house before but was known to the applicant. He was holding a can of beer and a rose, which he gave to Mrs Hendy. Mrs Hendy thought Browning was drunk. He was slurring his words and was unsteady on his feet. In evidence at the trial, Browning admitted that he had been drinking all afternoon. As a result, he had very limited recollection of what occurred after his arrival at the Hendy home.

3 According to Mrs Hendy, Browning opened the wire door and pushed past her. He said he had come to see BJ, her grandson. When she asked again, he said he had come to see the applicant. He looked angry. Mrs Hendy followed Browning to the kitchen, where he said to the applicant: 'I am sick of this shit. What's going on?', to which the applicant replied: 'I don't know what's going on.' At this point Mrs Hendy telephoned her husband, who then spoke both to Browning and the applicant. Mrs Hendy also telephoned Rachelle Wilson, Browning's fiancée. (Wilson was the former girlfriend of the applicant and the mother of BJ.)

4 Browning threatened the applicant in the kitchen and then they went out to get on to the verandah. Browning said to the applicant: 'I'm going to go you'. Once the door was shut, Browning grabbed the applicant around the neck. He first put the applicant up against the wall, then placed his hand on the applicant's throat and then held the applicant in a head lock. It appeared to Mrs Hendy that Browning was squeezing the applicant's throat very tightly. They were scuffling and the applicant was trying to get away. The next thing Mrs Hendy noticed was that her son had stabbed Browning with a knife which was in his left hand. In evidence she said that she thought she saw only three stabbing motions. The medical evidence at the trial was that Browning suffered eight stab wounds.

5 The applicant stood trial on one count of intentionally causing serious injury and one count of recklessly causing serious injury. He was acquitted on the first count and convicted on the second. He was sentenced to 2 years and 6 months' imprisonment. A minimum term of 15 months was fixed. The applicant now seeks leave to appeal against both conviction and sentence. I deal first with the conviction appeal.

1. The learned trial judge's directions as to self-defence were inadequate in that he -

(a) failed to identify that the prosecution must negative the applicant's belief as perceived by him to be reasonable;

(b) directed that if the prosecution showed that the applicant's conduct was unreasonable then self-defence was negated.

1. The learned trial judge's directions as to self-defence were unclear.

6 As the judge explained to the jury, it was conceded by the defence that the applicant had struck Browning with a knife and that the injuries sustained by Browning were serious. The central issue in the trial was whether the prosecution had proved that the applicant had 'no lawful excuse' for the stabbing, that is, whether the prosecution had negatived self-defence.

7 His Honour gave very full directions to the jury about how the self-defence question must be approached. In order to address the grounds of appeal, it is necessary to set out two lengthy extracts from the charge. (For ease of reference, I have numbered the paragraphs from 1-8 in the first extract and from 20-34 in the second). The first relevant part of the charge was in these terms:

1. There are two possible ways for the prosecution to prove the accused was not acting in self-defence, and the first is belief in necessity. The first way in which the prosecution can prove that the accused was not acting in self-defence is to prove beyond reasonable doubt that he did not believe it was necessary to do what he did to defend himself, and I will read that again.

2. The first way in which the prosecution can prove that the accused was not acting in self-defence is to prove beyond reasonable doubt that he did not believe that it was necessary to do what he did to defend himself. This involves assessing the accused's state of mind at the time. What threat did he believe that he faced? Did he believe it was necessary to react to the threat with force, and to react with the level of force used in order to defend himself? Or, was he acting for some other purpose?

3. In making this assessment, you must consider the circumstances as the accused perceived them to be at the time that he committed the acts. It does not matter if you think he was mistaken about the danger he faced or you believe that he overreacted to the threat. The question here is whether the prosecution can prove that he did not believe it was necessary to act in the way he did to defend himself against the danger he faced at the time, and that is the danger that he thought he faced at the time. It is his state of mind which you have to consider.

4. A second way in which the prosecution can prove that the accused was not acting in self-defence is by proving that even if he believed his acts were necessary, that belief was not based on reasonable grounds. This again requires you to consider the circumstances as the accused perceived them at the time he stabbed the victim.

5. You must determine whether the prosecution has proved that it was not reasonable for him to have acted in the way that he did in response to the threat he believed he faced. It does not matter if the accused was mistaken about that threat, so long as his response to the threat, in all the circumstances, as he perceived them to be, was based upon reasonable grounds. If the prosecution fails to prove beyond reasonable doubt either that the accused did not believe it was necessary to act in the way he did to defend himself, or the belief was not based upon reasonable grounds, then you must find him not guilty of the offences.

6. In determining whether the accused acted in self-defence, you must take into account all of the circumstances in which the act occurred. This includes all those matters which form part of the evidence, and I will take you to the evidence in due course. You should also consider the defence's claim that the accused was acting to an imminent threat. In such circumstances, a person cannot be expected to weigh precisely the exact amount of self-defence action which is required. You should not look at the situation with the benefit of hindsight, but instead take into account the fact that calm reflection cannot always be expected in a situation such as this. It is for this reason that there is no requirement that the force used in self-defence be proportionate to the harm threatened. As long as the accused believed on reasonable grounds that his acts were necessary, it does not matter if you believe that they were disproportionate. However, if you consider the accused's actions were out of all proportion to the harm threatened, then that is one of the factors you take into account in determining whether he believed his actions to be necessary in the circumstances. You can also take it into account in deciding whether the accused's belief was based upon reasonable grounds.

7. For example, you would take into account in this case the fact that the victim was very aggressive, he admits he grabbed the accused in a headlock; you will recall the evidence of the mother as to the way the headlock was applied, that is, in a standing position, or bent forward slightly. The victim, on his evidence, was very drunk. The accused was totally sober, if you accept his evidence.

8. In addition, you have heard evidence that the accused had some martial skills and the extent of those skills will be a matter for you to assess. You have seen the build of both men and heard the evidence of the accused's mother, that they were about six feet in height, and you then had the production of the knife. The mother said to you that she saw three blows to the front of the body of the complainant, and we know from the hospital records that not only were there more than three wounds to the front of the body, there was one to the head and four to the back. In this case the prosecution alleged that the accused's acts were plainly disproportionate to the threat he faced, and I will return to that shortly.[1]

8 His Honour returned to the issue of self-defence at the conclusion of his charge, in the following terms:

20. In conclusion, if you find that the accused did not believe that it was necessary to do what he did to defend himself, then the Crown has made out its case, so you look at the situation the accused is dealing with. He is dealing with a man who is drunk, who was not armed with any weapon, who has the accused in a headlock. The accused has both arms free and he has martial arts expertise using arms and legs, as admitted by him in his record of interview, and you ask yourself was it necessary to take a knife, using his free hands, and stab his attacker on nine occasions.

21. You must concentrate on the accused man's state of mind - what threat he believed he faced at that time. The headlock was such that he was in real danger of being overwhelmed, and the threats made to break his neck or cause his head injuries, were not only real but were occurring at the time that he acted, and the Crown must prove that positively his state of mind was such that he did not believe it was necessary to do what he did.

22. He told police in the record of interview that he was scared, that he was shitting himself in the situation he found himself in - that he was fighting with a man who had a violent reputation, and although he was not being threatened with an iron bar he was still being threatened in the way in which he was being held. Even if you believe he was mistaken as to the threat he faced or that he [over-reacted], it must be proved that he did not believe it was necessary to act in the way he did, in order to convict him.

23. In order to determine a person's state of mind you have to draw an inference or a conclusion from the facts [as] you find them to exist. When you examine those facts, is the only inference or conclusion open, that he did not believe it was necessary to do what he did to defend himself? You must be satisfied that no other inference or conclusion is open. If you believe there is another conclusion or inference open, then the Crown has not proved its case.

24. As I said to you, if the Crown has proved to your satisfaction, having regard to all the facts you find established, that the only conclusion open is that he did not believe it is necessary to do what he did, then of course you would convict him. That has to be proved beyond reasonable doubt to your satisfaction. If you have a reasonable doubt about that then of course you must acquit him.

25. If you find the Crown has not proved the accused did not believe it was necessary to do what he did, you then move to the second way in which the Crown may prove its case, that is his belief was not based upon reasonable grounds, and you might ask what is the difference between the two? The first is that the Crown has failed to prove that it was not necessary in his mind to do what he did to defend himself. A second, if you so thought it was necessary, then although that was his view it was not based on reasonable grounds, and again we go to the issue of the circumstances that he found himself at the time of the stabbing. The prosecution must prove that it was unreasonable for him to have acted in that way. You must look at all the circumstances as indicated.

26. The Crown say that what was done was disproportionate to the threat and was not reasonable. You must take into account matters which the accused man faced. First of all, the attendance of a drunken man uninvited at the house. (2) The threat made to break his neck or cause injuries to his head. (3) The accused man in his record of interview said he was aware of the violent past of Browning. Further, there is a bad relationship between the two men. Not only does he have this awareness of his violent past. When outside he is then placed in a headlock by Browning.

27. The accused man produces a knife which he has on him and he thrashes about with that knife during this altercation. He says that he does not aim it. He inflicts some nine stab wounds front and back in this scuffle. It is said that the wounds to the back are superficial but it certainly is a serious head wound to the back of the head.

28. In his record of interview the accused says that he stopped thrashing with the knife once Browning let him go, and he says that on a number of occasions, so we are not dealing with a man who has been let go and then does some act to cause injury. The moment Browning lets him go then there is no more stabbing, and that is very clear on the evidence.

29. If you have got a pen there, if you look at passages 277 to 279 of the record of interview you will see this emerge. The passages seem to suggest clearly he just wanted to get Browning off him, and as soon as that took place he ceased using the knife and Browning left.

30. Browning admits he started the incident by grabbing the accused around the neck. He has him in a headlock and at question 74 Hendy states, "He's got me in a headlock, that's when I pulled out the knife and I just wanted to get him off me". As it turned out, apart from brute strength the knife was the only weapon to protect himself, that is the accused man, and he is entitled to use that knife to protect himself, but only if you find that it is both necessary and reasonable.

31. As for the Crown satisfying you that what was done was not necessary to defend himself, and you can also take into account in deciding the accused's belief as to whether it was based upon reasonable grounds.

32. I tell you you do not have to accept all of what he said in the record of interview, and a simple example of, you may think, is the plastic bags as to whether you find that credible. You do not have to accept that, but that does not mean that you cannot as well accept other aspects of the record of interview which were put.

33. Questions you have got to ask yourself: Do you accept the accused man's version that it was both necessary and reasonable to stab Browning that many times? Is there an element of revenge for past events? Did he go beyond the number of stab wounds so that his conduct was not reasonable? These are facts to be determined by you.

34. In the end if you have a reasonable doubt that the accused acted in self-defence by doing what he did as being necessary and reasonable, then you acquit him. The Crown must prove beyond reasonable doubt that he did not act in self-defence, that is, he knew it was necessary or reasonable to do what he did. If you find that proved then of course you convict him. If you have a reasonable doubt about that issue then you must acquit him.

9 The submissions for the applicant concentrated on three passages in the charge. The first was in [5]:

You must determine whether the prosecution has proved that it was not reasonable for him to have acted in the way that he did in response to the threat he believed he faced.

The prosecution must prove that it was unreasonable for him to have acted in that way.

Did he go beyond the number of stab wounds so that his conduct was not reasonable? These are facts to be determined by you. In the end if you have a reasonable doubt that the accused acted in self-defence by doing what he did as being necessary and reasonable, then you acquit him.

10 As the High Court said in Zecevic v Director of Public Prosecutions (Vic),[2] when self-defence is in issue:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or in the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.[3]

The question whether the belief was (proved not to have been) based on reasonable grounds is to be determined not by what a reasonable person would have believed but by what the accused person might reasonably have believed in all the circumstances in which he found himself.[4]

11 The contention for the applicant was that the judge had misdirected the jury by directing them to consider whether the applicant's conduct was reasonable in the circumstances. A direction in those terms would, counsel argued, have diverted the jury's attention from the proper inquiry - directed at the reasonableness of the applicant's belief - and would instead have invited consideration of whether, viewed objectively, what the applicant did was reasonable or unreasonable in the circumstances.

12 In my view, this submission must be rejected. When the charge is read as a whole, as it must be, I do not consider that there was any risk of the jury being left with a misunderstanding of their task in relation to the self-defence question. As appears from the highlighted sections in the above extracts, the judge stated the correct test - 'whether there were reasonable grounds for the accused's belief' - on eight separate occasions in his charge, five times in the first extract[5] and three times in the second.[6] For the jury, hearing the charge rather than (as this Court does) reading it, repetition of the test on so many occasions must necessarily have both highlighted, and reinforced, the correct approach.

13 Moreover, his Honour made it unambiguously clear, on two separate occasions,[7] that there were only two issues, namely, whether the accused honestly believed in the necessity of what he did and, if so, whether that belief was based on reasonable grounds. The jury would have been in no doubt, from his Honour's repeated instruction to them to consider the accused's state of mind,[8] that the second question was to be approached in exactly the way his Honour stated, that is, by deciding whether the prosecution had shown that (if the applicant had the honest belief in necessity) he lacked reasonable grounds for that belief. They would not have taken the references to the reasonableness of the conduct as posing a different test, let alone a contradictory one. This conclusion is reinforced by the fact that, on three of the occasions where reference was made to the reasonableness of the conduct, the reference was immediately preceded, or followed, by reference to the 'reasonable grounds' test. For example,

5. You must determine whether the prosecution has proved that it was not reasonable for him to have acted in the way that he did in response to the threat he believed he faced. It does not matter if the accused was mistaken about that threat, so long as his response to the threat, in all the circumstances, as he perceived them to be, was based upon reasonable grounds.[9]

14 The jury will have understood, in this context, that the reference to the reasonableness of the conduct was simply a re-statement, in other words, of the 'reasonable grounds' test. The two issues having been clearly and repeatedly identified by the judge, the formulation 'did he act reasonably?' would have been understood by the jury as a summation of, or shorthand for, the fuller question 'Did he have reasonable grounds for believing that it was necessary to act as he did in response to the threat as he perceived it?'

15 That the two concepts can, in context, be referred to interchangeably is illustrated by the discussion of self-defence by Ormiston JA in Portelli. The question which arose there concerned the effect of a reference in the judge's charge to proportionality. Having set out the Zecevic test - whether the accused believed on reasonable grounds that it was necessary to act as he/she did - his Honour continued:

... [A]s the High Court has pointed out, proportionality is simply one of a number of factors which may be considered by the jury in coming to a decision whether the accused's response has been reasonable. Finally it may be seen that a simple requirement that responses in these situations should be "proportionate" overlooks the emergencies of the moment.

...

Indeed, it will often be the extent of the disproportion of response which will be critical to a determination of what is reasonable in all the circumstances. It is, however, but an aspect of the accused's behaviour which goes to the ultimate decision of the jury whether the prosecution has shown the unreasonableness of the accused's acts such as to establish, in the present case, a want of lawful excuse.[10]

Indeed more may have been said of the issue of proportionality, at the correct stage of the charge, in the sense that it was relevant both to the applicant's perceptions of the risks faced, as well as the reasonableness of his reactions to those perceptions.[11]

16 It can be seen that his Honour was here using what I have called the shorthand form - 'whether the accused's response has been reasonable' - as a substitute for the longer 'reasonable grounds' formulation, in just the way the trial judge did in the present case. (It can also be seen from the first extract that the correct approach to proportionality is to treat it as but one factor relevant to the jury's consideration. The judge in the present case correctly instructed the jury on this point.)

17 The jury sought no clarification from the judge on self-defence, and defence counsel took no exception to the charge. These circumstances are never determinative but they reinforce the conclusion I have reached, that there was no sensible risk of the jury applying the wrong test. These grounds therefore fail.

18 The language of the directions on self-defence indicates that the learned judge was, prudently, utilising the Charge Book prepared and published by the Judicial College of Victoria. The Charge Book is an invaluable resource for trial judges. The detailed guidance which it provides is a powerful safeguard against error.

19 Relevantly for present purposes, the passages in [5] and [25] of the charge about which complaint was made reproduced almost exactly the language of the Charge Book. The critical words are highlighted in the following passage from the Charge Book:

The second way in which the prosecution can prove that NOA was not acting in self-defence is by proving that even if s/he believed his/her acts were necessary, that belief was not based on reasonable grounds.

This again requires you to consider the circumstances as NOA perceived them to be at the time s/he [insert relevant act]. You must determine whether the prosecution has proven that it was unreasonable for him/her to have acted in the way s/he did, in response to the threat s/he believed s/he faced. It does not matter if NOA was mistaken about that threat, so long as his/her response to the threat, in all of the circumstances as s/he perceived them to be, was based on reasonable grounds.[12]

20 As in Portelli - and perhaps because of the terms of that unanimous decision - the question 'Was it unreasonable for him/her to have acted in the way s/he did?' is here treated as equivalent to, and interchangeable with, the question 'Did he/she have reasonable grounds for believing that it was necessary to have acted in the way s/he did?' As in the judge's charge, the alternative formulation is both preceded and followed by the 'reasonable grounds' formulation.

21 Nevertheless, and notwithstanding my conclusion in the present case, it would be preferable if the model charge contained no reference at all to the reasonableness of the accused's conduct. It is not, after all, the correct test. If - in a different case - there were a real risk that a jury so directed had applied an objective test of reasonableness to the accused's conduct, as distinct from his/her belief, then it is likely that the trial would be viewed as having miscarried. A simple amendment of the model charge would remove, altogether, the possibility of that unintended consequence.

22 Since the High Court's 1994 decision in M v The Queen,[13] the approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground has been clear. The analysis involves the following steps:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[14]

... [T]he question posed in M v The Queen, namely

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?

requires the court of criminal appeal to decide

whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt' or whether, instead, the 'path to a conviction was open'.[16]

24 The submission for the applicant consisted, essentially, of a summary of the evidence at trial, before concluding with this proposition:

The Court ought to entertain a significant possibility that an innocent person has been convicted.

In oral argument, counsel narrowed this contention. His argument was that a reasonable jury could not have been satisfied that self-defence had been negatived.

25 In my opinion, this ground also fails. As counsel for the Crown argued, the question whether the applicant's actions were (proved not to have been) done in self-defence was a quintessential jury question. As I have said, the jury were correctly directed to consider, first, whether they were satisfied that the applicant - who was sober - did not honestly believe that it was necessary to stab the unarmed and drunken Browning repeatedly in order to meet the threat as he perceived it; and, secondly, if he did have that belief, whether they were satisfied that he did not have reasonable grounds for it. In my opinion, it was well open to the jury to be so satisfied.

26 On the evidence, Browning was the initial aggressor and had put the applicant in a headlock. But, even before he went outside with Browning, the applicant had armed himself with a knife. At that stage, there was no indication of any particular threat to him. Some time was spent at the trial on the question whether Browning had brought with him a 'whopping great stick'. But, even if he had, the applicant was unaware of it when he armed himself, and Browning made no use of it. The jury saw and heard Browning and the applicant, and the eyewitness account of Mrs Hendy. It was in my view open to the jury to be satisfied beyond reasonable doubt that, even assuming that the applicant genuinely believed it was necessary to stab Browning repeatedly, he did not in the circumstances have reasonable grounds for that belief.

Ground 1: The learned sentencing judge erred in finding that the applicant's case was similar to DPP v Coley [2007] VSCA 91

Ground 2: The learned sentencing judge erred in failing to take into account sufficiently that the circumstances of the crime were not of the applicant's making, that he had been the subject of threats, weapons had been brought to his house where his mother and child lived, the victim had a history of assaulting people including police with weapons, was drunk and had animosity towards the applicant, all matters that distinguished the case from Coley.

27 The relevant part of the judge's sentencing remarks was in these terms:

Once outside, Browning proceeded to attack you. He told you that he was going to break your neck. He proceeded to place you in a headlock and a struggle ensued in front of your mother and son.

This violent, drunken, aggressive man was pursuing that which he stated to you when he arrived at the house. However, you had upon leaving the premises armed yourself with a knife. You had that knife which was in a sheath and you placed it down the front of your trousers. Once the headlock was placed upon you, which was the very threat that was made to you, a struggle took place and what you then did was to produce that knife.

How that occurred is difficult to say. You would have had your hands free and you obtained the knife from your trousers. You unsheathed it and then you proceeded to protect yourself by stabbing Browning.

I have no doubt that your actions were designed to protect yourself, however wheat you did was to inflict nine stab wounds to Browning in the ensuing struggle.

In your record of interview to police you stated that you used the knife in a random fashion. That is you used it without any specific aim, and you were only seeking to protect yourself, and that was your defence at the trial, and the jury have rejected the proposition that you acted in self-defence.

You stabbed him repeatedly until he let go of you, given his injuries. I accept that you immediately ceased using the knife, once free. You were entitled to protect yourself, given the circumstances. However, I interpret the jury's verdict of this being a situation where you went beyond what was necessary, and you acted in such a way that was disproportionate to the threat you faced.

The fact that you armed yourself with a weapon before going outside, and that you concealed that weapon and used it in a random fashion to stab Browning repeatedly was, in my view, the reason why you were convicted of recklessly causing serious injury.

The stab wounds were multiple and some of them were life threatening. In particular there was a stab wound to the neck from which blood poured and this was serious.

You were a person who had self taught yourself some martial arts, and I also interpret the verdict as indicating the jury though that having armed yourself with a knife, that having been involved in a struggle you decided to use the knife and did so at a time when during the struggle you, at least, had both hands free, but elected to use the knife.

The stab wounds were to the front of Browning's body as well as four stab wounds of a superficial nature to his back.

The use of a weapon such as a knife, the infliction of multiple stab wounds, albeit with the intention of defending yourself was of such a nature that you went well beyond that which was proportionate to the risk you face.

I have given very careful thought to the issue of what is an appropriate sentencing disposition. My initial approach was to impose upon you a fully suspended term of imprisonment, however I have come to the view that a disposition of such a nature is not appropriate.

I have formed that view based upon my own assessment of the nature of the assault. It is also a view that the Court of Appeal has taken in a similar case to which I was referred. See the Crown v Coley. Aspects of general and specific deterrence are important in cases of this nature, particularly when weapons are used.

28 In DPP v Coley,[17] the Director of Public Prosecutions appealed against a sentence imposed on an offender who had been convicted by a jury on one count of recklessly causing serious injury. The sentence of two years' imprisonment had been wholly suspended for a period of three years. The victim had been repeatedly stabbed with a large knife. There, as in the present case, the jury had rejected a claim of self-defence. The appeal was dismissed, in the exercise of the Court's discretion, but Vincent and Kellam JJA both expressed the view that the imposition of a wholly suspended sentence was inappropriate in the circumstances.

The use of knives, whether in circumstances of recklessness or otherwise, as a means of resolving disputes is a matter of great concern to the community and to the courts and must be deterred. The serious injuries sustained by the victim, which included a penetrating wound in the back of sufficient depth to cause a pneumothorax are ample evidence of a high degree of recklessness on the part of the respondent and of the serious nature of this offence in all the circumstances.[18]

In circumstances which the respondent claimed not to be able to recall, but which the jury held did not constitute self-defence or could be seen on the evidence of the witnesses at his trial to be seriously provocative, he repeatedly stabbed his victim with a large knife recklessly inflicting serious injury. The injuries resulting from this assault were serious to the extent that they were life threatening. Although the victim has fully recovered physically, understandably he has continued to suffer psychological effects. This offence is punishable by the imposition of a maximum sentence of imprisonment of 15 years. It is also important to bear in mind that the respondent had 15 months before the occasion in question pleaded guilty in the Magistrates' Court at Dandenong to the assault of a member of his family and had been released without conviction to be of good behaviour for a period of 12 months. That order had accordingly expired only a short time before the commission of this offence. Both general and specific deterrence can be seen to assume considerable significance as sentencing considerations in this case and a period of immediate incarceration was clearly called for.[19]

30 In my view, there is nothing in these grounds of appeal. The judge's reference to DPP v Coley was unexceptionable. Although there were factual differences between the two cases, the relevant similarity was the reckless stabbing with a knife in (disproportionate) response to a perceived threat, causing very serious injuries. His Honour was well justified in emphasising the importance of general and specific deterrence 'in cases of this kind'. As appears clearly from the sentencing reasons, the judge made his own 'assessment of the nature of the assault' and formed his own conclusion that a suspended sentence was not appropriate.

Ground 3: The learned sentencing judge erred in objectively assessing the risk the applicant faced without taking into account the applicant perceived himself to be acting reasonably.

Ground 4: In the alternative, the learned sentencing judge erred in the assessment of the risk that the applicant faced, and his judgement of what a proportionate response would have been in the circumstances.

31 In sentencing the applicant the learned sentencing judge was required to assess the nature and gravity of the applicant's offending conduct, including his degree of moral culpability. That assessment had to pay due regard to the verdict of the jury. In my opinion, it was open to his Honour to find that the disproportionate response by the applicant in defending himself against Browning was such as to explain the jury's verdict of guilty on count 2.

32 I see no error in the judge's analysis. These grounds fail.

Ground 5: The sentence imposed is manifestly excessive.

33 The offence of causing serious injury recklessly carries a maximum penalty of 15 years' imprisonment. This was a serious example of the offence.

34 As the Crown submitted, Browning suffered life threatening injuries and was fortunate to receive the prompt medical assistance that he did. As the victim impact statement made clear, Browning continues to suffer adverse emotional and physical consequences as a result. The nature of the weapon used, and the number of wounds inflicted, indicate the degree of recklessness involved. Further, the applicant pleaded not guilty and ran a trial on the basis that he had acted in lawful self-defence. The jury's rejection of that defence meant that the applicant was not entitled to any sentencing discount on account of his plea.

35 The applicant could nonetheless rely on a number of matters in mitigation. His actions were not gratuitous and occurred in circumstances where he had been subjected to verbal and physical aggression from the victim. He was remorseful, had no prior convictions and presented with good prospects of rehabilitation.

36 The learned sentencing judge recognised these mitigating factors and gave careful consideration to the question of whether any sentence of imprisonment he imposed should be immediately served. In ultimately deciding that an immediate custodial sentence was warranted, his Honour took into account the seriousness of the assault and the importance of general and specific deterrence in cases involving the use of weapons, especially knives, to inflict serious injury.

37 The sentence of 30 months equated to just over 15% of the maximum. In the circumstances, it cannot be said that the sentence is manifestly excessive. The non-parole period of 15 months represented 50% of the head sentence, which is indicative

of the weight that his Honour gave to the matters in mitigation, particularly the applicant's good prospects for rehabilitation. This ground is not made out.

38 For these reasons, the application for leave to appeal against sentence should be refused.

39 I agree with Maxwell P, for the reasons which his Honour gives, that the applications for leave to appeal against conviction and sentence should be refused. I also agree with his Honour's observation at [21].

40 I have had the advantage of reading in draft the reasons of Maxwell P. I agree with his Honour that leave to appeal against conviction and sentence should be refused.

[2] [1987] HCA 26; (1987) 162 CLR 645, 661 (Wilson, Dawson & Toohey JJ).

[3] See also R v Portelli [2004] VSCA 178; (2004) 10 VR 259, 270 [23] (Ormiston JA, with whom Winneke P and Charles JA agreed).

[5] Charge extract [4], [5] (twice), [6] (twice).

[10] R v Portelli [2004] VSCA 178; (2004) 10 VR 259, 272 [26] (emphasis added).

[13] [1994] HCA 63; (1994) 181 CLR 487.

[14] Ibid 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 614-5 (Gleeson CJ, Hayne and Callinan JJ), 623-4 (McHugh, Gummow and Kirby JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] (the Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

[15] [2007] VSCA 47, [63] (citations omitted).

[17] [2007] VSCA 91.