R v Kane [1998] VSCA 66

24. On 26 June the learned judge sentenced the applicant on count 4 to two years and six months' imprisonment, and on counts 6 and 8, in each case to four months' imprisonment. The total effective sentence was therefore two years and six months' imprisonment and a non-parole period of 18 months was fixed. The applicant had by then spent 401 days in custody. The applicant now seeks leave to appeal against sentence on the grounds that -

1. The judge erred in finding that it was the abdominal stab wound that required 14 staples and internal stitching, rather than the exploratory surgery following the stab wound to the abdomen.

2. The judge erred in failing to act upon the applicant's account as to when and where she came into possession of the knife.

3. The judge failed to give any or any sufficient weight to the rehabilitation of the applicant.

4. The judge erred in finding that the applicant had no remorse.

5. The sentence is in all the circumstances manifestly excessive.

32. On 24 November 1997 Hronis and Iulanella appeared in the County Court, and pleaded guilty to one count each of attempted robbery (count 1) and one count each of recklessly causing injury (count 2). On 28 November 1997 the judge sentenced Hronis to 12 months' imprisonment on count 1 and one month's imprisonment on count 2 resulting in an effective sentence of 12 months' imprisonment, and his Honour fixed a non-parole period of six months' imprisonment. On the same date the learned judge sentenced Iulanella to 14 months' imprisonment on count 1 and two months' imprisonment on count 2, directing that the sentence on count 2 be served cumulatively on the sentence imposed on count 1. Accordingly the total effective sentence was 15 months' imprisonment and a non-parole period of eight months' imprisonment was fixed. At this time both Hronis and Iulanella had spent 192 days in custody.

35. In this Court the applicant sought to add a sixth ground, that the judge failed to consider the issue of parity of sentence with the co-offenders. At no stage during the plea, however, did the applicant's counsel make reference to the sentences imposed on the co-offenders or raise the issue of parity. We therefore rejected the application to add the sixth ground.

38. The circumstances relating to the two counts (6 and 8) of handling stolen goods were as follows. At about midnight on Saturday 17 May 1997, a VW Golf coupe was parked in Haig Street, South Melbourne, and the driver went to Crown Casino, leaving his wallet, containing $150 in cash, a Commonwealth keycard, two health care cards and a Video Ezy membership under the driver's seat. When the driver returned at about 3 a.m. he found that the car had been broken into and his wallet stolen. When police executed a search warrant at the applicant's room at 40 Ferrars Place, South Melbourne on 20 May 1997, they found the driver's keycard and health care cards in the room. On the same night, a four-wheel drive Toyota Prado was left outside 34 Ferrars Place, South Melbourne, unlocked. When the owner (a doctor) returned to the vehicle at 9 a.m. on Sunday 18 May, she found the glove-box of the vehicle had been emptied and her doctor's prescription pad removed. The prescription pad was later found in the applicant's room when the police executed the search warrant already referred to.

41. In relation to count 4, the complainant's evidence was that she was in the room she occupied in Hanover House, 52 Haig Street, South Melbourne, at midday on Monday 19 May 1997 when there was a hard knock on the door. She said she opened the door to Hronis and Iulanella who were standing right in the doorway. They came into the room followed by the applicant. The applicant grabbed the complainant by the throat with her left hand, while standing in front of her near the sink. According to the complainant, the applicant said "Where's your fucking gold?", and started stabbing the complainant with her right hand, wounding her first in the left arm. The complainant did not at once know that she was being stabbed, but she was then stabbed in the arm, the stomach and the back. While this was occurring the applicant was demanding the complainant's money in an angry tone. The complainant attempted to get away but was being held by Iulanella who had both his hands around her right arm. When the complainant said she would go and get her gold and money Iulanella let go of her arm and she then escaped from the room. After she left the room she went to a social worker's office on the ground floor, and from there was given first aid and taken by ambulance to the Alfred Hospital. She remained a patient in the Alfred Hospital for just over a week. Her wounds had healed completely at the date of the trial but she still had some problem with her stomach wound, and each wound has resulted in scarring. The applicant did not take any money or jewellery from the complainant's room.

44. During the trial there was an issue as to whether the knife by which the complainant was stabbed was in the possession of the applicant at the time she entered the complainant's room, or whether on the other hand she picked it up while in the room. The complainant's evidence was that the knife was not her knife and that she had never seen it before that night. The complainant also denied that she had received some injuries to her body caused by the fact that she was rolling around and bumping into the furniture. In re-examination she said that the applicant struck her with the knife twice while Iulanella had hold of her right arm, on her back and on her arm. A second issue related to the nature of the wounds inflicted by the applicant. Medical evidence was given by Dr Sarah Elizabeth Kemp, a surgical registrar at the Alfred Hospital. Her evidence was that the stab wounds suffered by the complainant were consistent with having been caused by the knife. Dr Kemp said the wound to the left arm was a stab wound which would have been caused by the insertion of a knife with upward force. She said the wound to the back was through the skin and, as the knife was quite a sharp knife, not much force would have been needed to cause that wound. Dr Kemp said the wound to the abdomen went right through the abdominal wall into the abdominal cavity and was about four centimetres deep. A moderate to high degree of force would have been required to cause the wound. Exploratory surgery was undertaken to see if there was any internal damage, and at the operation it was observed that there was a small injury (a cut) to the front surface of the liver, consistent with having been caused by the point of the knife. The knife would have been angled upwards. After the operation the abdominal wall was stitched internally and the wound was closed with 14 staples.

47. The applicant gave evidence that she heard Hronis and the complainant arguing in the room next door to her and went in to see them, pushing the door back to enter behind Hronis and Iulanella. She said that the complainant was coming towards her telling her to get out of the room. They exchanged words. She said that the complainant pushed her and she grabbed the complainant and they struggled. She said she was not carrying any weapon when she entered the room. The applicant said they pushed up against the kitchen basin and she reached out and grabbed "what ended up being a knife". They fought some more and then fell onto the bed, and in doing so the applicant fell on top of the complainant and the knife went into the latter's stomach. They then got off the bed and fell against the cabinet "and just went back and forth around the room a bit". She said that they fell to the floor and Iulanella grabbed them both by the wrist and pulled them apart and there was no further contact between them. The applicant said the complainant was bleeding and left the room and the applicant left and went to her own room, closed the door and left the building. She then had the knife with her and put it into her handbag. She denied making any demands of the complainant for money, valuables or jewellery. Under cross-examination the applicant said that she grabbed the knife from the sink on the spur of the moment with the intention of using it on the complainant to fend her off and stab her. She did not receive any cuts in the struggle as far as she could remember but said she was "pretty stoned" at the time. Her shoulder was put out of place as a result of the struggle.

50. Before this Court most of the argument centred upon passages in the learned judge's sentencing reasons which dealt with the two major issues of fact to which I have already referred. Turning first to the nature of the stomach wound suffered by the complainant, the medical evidence made it perfectly clear that the wound suffered by her was some four centimetres deep, penetrating right into the abdominal cavity, and was approximately three centimetres in width. It was when surgeons at the Alfred Hospital carried out investigatory surgery to ascertain whether the abdominal stab wound caused damage to any internal organ that they found the cut to the surface of the liver. It was then that surgeons made the incision of about ten centimetres' length which was shown in the exhibits, photographs 41 and 42, the surgical wound which required 14 metal staples to close.

53. The words used by the learned judge in his sentencing reasons do give some support to the argument made by Mr Salek, who appeared in this Court on behalf of the applicant, that his Honour was sentencing the applicant upon the basis that this was the actual abdominal wound inflicted by the applicant. But the learned judge had presided over the trial and had heard all the medical evidence given on this issue, and I cannot accept that this very experienced judge would have been mistaken as to the nature of the wound inflicted. Furthermore, the stab wound was certainly a serious one, whichever view of the evidence was taken. Mr McArdle, who appeared in this Court for the Crown, argued that the learned judge's words meant no more in context than that the applicant was to be sentenced on the basis that it was her actions which brought about the need for the stapling of the complainant's stomach. I agree. Ground 1 therefore fails.

56. On the second factual issue, the learned judge said -

"It is not clear precisely what view the jury took as to that incident which occurred in Room 42 at Hanover House on 18 May of last year. I think however that the jury must have taken the view that after you entered that room a scuffle occurred between you and [the complainant], you then produced a knife and it was your actions with that knife which caused serious injury to her. The jury clearly found, in my opinion, that the injury to [the complainant] following your production of the knife was not caused accidentally as you asserted in your evidence. The jury also found, of course, that your use of the knife in that physical encounter between you and her was without lawful excuse, that is, that you were not acting in self-defence.

In my opinion the jury took the view that you used the knife against [the complainant] in that encounter with her. The jury was of course not satisfied that you intended to cause serious injury to her but that you were reckless in your actions with that knife, in that you foresaw but were indifferent to the probability of serious injury.

You did cause serious injury to [the complainant]."

62. During the plea it was argued on the applicant's behalf that the verdict of the jury must have meant that, of the two versions of this incident, they did not accept that given by the complainant, and that the jury's decision not to accept the complainant's version inevitably meant that they also did not accept that the applicant was in possession of the knife when she entered the room. Mr Salek repeated that submission in this Court, but I do not accept it. In my view the jury's verdict on the first two counts simply shows that they were not persuaded beyond reasonable doubt that when the applicant entered the complainant's room she had an intention to steal.

65. The question whether the applicant went armed with the knife into the complainant's room was obviously an important one. Plainly the offence of recklessly causing serious injury was to be viewed more seriously if the offender went armed into the complainant's room. There was a lengthy exchange with counsel during the plea, provoked by a question from the learned judge as to what view his Honour should take as to whether the applicant entered the room with a knife, having regard to the jury's verdicts of acquittal on counts 1 and 2 and guilty on count 4, and which resulted in the passage in his Honour's sentencing reasons I have already set out.

68. In this Court Mr Salek argued that this passage showed that his Honour had (as shown by his use of the expressions "then produced a knife" and "following your production of the knife") drawn the conclusion that the applicant had entered the room carrying the knife, a conclusion which, it was submitted, was inconsistent with the jury's verdict and not open on the evidence. Mr McArdle on the other hand argued that the learned judge by these words was not expressing any finding on the issue whether the applicant took the knife into the room with her, indeed he submitted that the words showed that his Honour did not purport to make a finding on this issue.

71. I think Mr McArdle's interpretation is to be preferred, and ground 2 therefore fails. But the conclusion which results from this approach is not an entirely satisfactory one. The applicant was in my view entitled to know the basis upon which she was being sentenced. The jury's verdict did not, for the reasons I have already given, decide the issue whether the applicant went into the complainant's room armed with the knife. The issue having been raised, it would clearly have been desirable for the learned judge to indicate whether or not he was sentencing the applicant upon the basis that she was carrying the knife when she entered the room; and since this was an aggravating circumstance, on established authority proof of it beyond reasonable doubt was required.

74. Mr McArdle argued that it was open to the learned judge to find beyond reasonable doubt that the applicant did enter the room armed with the knife. The evidence which would have supported this conclusion was the complainant's emphatic assertion that the knife was not hers and that she had never seen it before in her life. The only other evidence (apart from the applicant's) bearing on the issue was that of Jodie De Bono, who was with the complainant in her room when the other three entered. The evidence of Miss De Bono on this issue was, however, equivocal, and I do not regard it as supportive of the view that the applicant entered the room with the knife. De Bono's evidence added very little as to the circumstances under which the applicant and those with her entered, she did not see the complainant touched during the episode, nor did she even see the applicant in the complainant's room. The applicant on the other hand was vigorously cross-examined on the subject and gave what, on my reading of the transcript, would appear to be a forceful and consistent denial that the knife was hers, or was brought into the room by her, and a reasonably convincing explanation of why she said she would not have been carrying the knife.

77. It is for these reasons that, as I have already said, I think Mr McArdle's contention, that the learned judge did not purport to make any finding on this issue, is to be preferred. It follows that his Honour must be taken to have sentenced the applicant on the basis that she did not carry the knife with her when she entered the complainant's room.

80. It is convenient then to turn to ground 5, which, as argued, was a submission that the sentence of two-and-a-half years' imprisonment on count 4 was manifestly excessive. The jury's verdicts of not guilty on counts 1 and 2 show that the jury were not persuaded by the complainant's version of the circumstances under which the applicant and Hronis and Iulanella entered her room. Before the jury, the only other version of these events was the applicant's version. She said that she had heard Hronis and the complainant arguing in the next room and when she went in to see them, the complainant came towards her, telling her to get out of the room. The complainant pushed her and she grabbed the complainant and, when pushed against the basin, grabbed the knife. In the scuffle which followed she struck the complainant several times. I should add that De Bono said in evidence that she and the complainant had both been using heroin and Rohypnol during that day. De Bono said that she was "pretty stoned" at the time of the incident, the same expression being used by the applicant later in her evidence to describe her own condition.

83. The applicant has a lengthy criminal record, but an examination of her prior convictions shows that most of them stem in one way or another from her heroin addiction. It is noteworthy that she does not have any prior convictions for crimes of violence. The abdominal stab wound suffered by the complainant was unquestionably a serious injury, but, in all the circumstances set out above, I am none the less persuaded that a sentence of two-and-a-half years' imprisonment was manifestly excessive in relation to count 4. I would therefore uphold ground 5.

86. It is unnecessary then to consider grounds 3 and 4, but I note that Mr McArdle accepted that, if this Court came to re-sentence the applicant, the Court was entitled to take into consideration the affidavit material tendered by Mr Salek, the effect of which was to show that, before trial, the applicant through her counsel offered to plead guilty to the charge of recklessly causing serious injury. The Crown rejected the offer, which was conditional upon the other charges being withdrawn. The learned sentencing judge was not told of this offer and understandably took the view that the applicant had shown no remorse for her conduct. This new material may, I think, be relied upon as showing at least some evidence of remorse; see R. v. Bartlett [1996] VICSC 47; [1996] 2 V.R. 687 per Winneke, P. at 698-699.

89. I would therefore grant the application and set aside the sentence imposed on count 4. On the other hand, however, in my view the learned judge should, as Mr Salek conceded, have cumulated some portion of the sentences imposed on the convictions on counts 6 and 8 for handling stolen goods. These were quite plainly distinct offences, "really separate invasions of the community's right to peace and order", as Wells, J. put it in Attorney-General v. Tichy (1982) 30 S.A.S.R. 84, at 92-93; 6 A.Crim.R. 117, at 125-126; see also R. v. Mantini (1997) 95 A.Crim.R. 33, per Callaway, J.A. at 41-43.

92. In all the circumstances I would sentence the applicant on count 4 to 18 months' imprisonment. I would leave untouched the sentences imposed by the learned judge on counts 6 and 8. I would order that two months of the sentences imposed on each of counts 6 and 8 be cumulated upon the sentence imposed on count 4, giving an effective head sentence of 22 months' imprisonment. I would fix a non-parole period of 16 months. By my calculation the applicant has now been in custody for 489 days.

102. At the hearing of the plea for leniency, as at the hearing of this application, much attention was focused on the question whether the applicant fell to be sentenced on the basis that she entered the complainant's room with the knife. His Honour's questions to counsel showed that he was concerned with consistency with the jury's verdict. On two occasions he suggested to counsel that the jury's verdict was consistent with the view that the applicant took the knife with her. It is against that background that we must understand the passage at the beginning of his Honour's sentencing remarks that Charles, J.A. has read.

105. The judge expressly said in that passage that the jury must have taken a particular view of the facts. He did not make a finding of his own on that issue. He was applying the principle that, where there has been a jury trial, the sentence must be consistent with the verdict and any factual findings that are clearly implicit in it. The expression "you then produced a knife" and the reference to "your production of the knife" are neutral. His Honour was saying that the jury must have taken the view that the applicant produced a knife from somewhere and that, following that production, the injury took place. It follows, therefore, that the applicant was not sentenced to the term of two-and-a-half years' imprisonment on count 4 on the basis that she went armed into the complainant's room.

108. The reckless infliction of serious injury by stabbing is an offence not to be palliated but, in the circumstances both of the offence and of the offender described by Charles, J.A., including the evidence that his Honour has recounted, I respectfully agree that the sentence imposed in this case was manifestly excessive.

111. I also agree that there should be a measure of cumulation in relation to the sentences imposed on the two counts of handling. They were completely unrelated to the events the subject of count 4. The total concurrency that found favour with the learned judge is explicable on two bases. The first is that the handling counts were dealt with by counsel in a somewhat casual fashion on the plea, and that may have beguiled his Honour into treating them as having little significance. I do not think that is the right explanation. The other explanation is that his Honour had regard to the principle of totality and considered that the total effective sentence that would result from a direction or directions for cumulation would offend that principle. The difficulty is, with great respect, that that analysis reinforces the impression that the sentence imposed on count 4 was unduly severe.

114. For us both to reduce the sentence imposed for the offence of recklessly causing serious injury and to direct a measure of cumulation is not inconsistent with the inhibitions against increasing sentences on appeal, for the reasons I endeavoured to explain in Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998).

117. I find it unnecessary to say anything about the other grounds of appeal, but some of the matters agitated under the rubric of one or other of those grounds are relevant to the re-sentencing in which we must engage. In the circumstances of this case I do not regard the offer to plead guilty to the offence the subject of count 4 as evidencing remorse. In other circumstances such an offer might well do so. It may be that the offer gives rise to an entitlement to what is commonly called a discount. I am content to say that I take it into account for what it is worth.

120. The Court refused leave to add a ground of appeal relying on parity in sentencing. The co-offenders had been sentenced prior to the applicant. In my view it is only in very exceptional circumstances, which are not shown here, that an applicant should be permitted to mount a parity argument based on sentences of which the sentencing judge could have been, but was not, made aware. I do not overlook those sentences in the task of re-sentencing but I think that they are entitled to little, if any, weight. The co-offenders pleaded guilty to the different offence of recklessly causing injury and their pleas were heard in a different context.

123. I bear in mind and give weight to Mr Salek's submissions concerning the applicant's prospects of reformation, including rehabilitation from her addiction to heroin.

126. In the light of the circumstances and evidence to which I have earlier referred, I agree in the disposition of the application that Charles, J.A. proposes.

131. I do not agree that the sentence of two years and six months' imprisonment on count 4 lay outside the range of sentences open to the learned County Court judge. In the circumstances I am unable to agree that ground 5 of the application should be upheld. Nor, I consider, is any other ground made out. Since the application is to be allowed I shall not occupy the Court's time in expressing my opinion in any more than a summary way.

134. As to ground 1, the judge was obviously very well aware that the victim of the stabbing had been subjected to exploratory abdominal surgery, leaving a wound which required stapling, as well as requiring attention to her stab wound which evidently also required stapling. So much appears from the first full paragraph on p.20 of the judge's sentencing remarks. No doubt the observation by his Honour that "the abdominal stab wound" required 14 staples would have been more accurately expressed without the word "stab". I am wholly unpersuaded, however, that by using that word the learned judge betrayed a misunderstanding of the extent of the wound that the applicant inflicted on the victim with the fruit knife (Exhibit C), or that his Honour is to be taken to have sentenced the applicant on the footing that she inflicted a wound of such dimensions that 14 staples were necessary to close it. The sentencing remarks are not to be construed as if they were contained in a will or a deed or a statute. His Honour's sentencing remarks are, I should say, to be read and understood in the knowledge that he had been the trial judge over a period of several days just shortly before he was called on to pass sentence.

137. As to ground 2, I consider that the learned judge is to be taken designedly to have refrained from expressing a conclusion that the applicant brought the knife with her to the victim's room. I do not take his Honour to have sentenced the applicant on the footing that she had brought the knife there. I would only respectfully add that, if the judge had said so, he would usefully have avoided much debate that was had in this Court.

140. As to ground 3, the judge did take into account the applicant's rehabilitation, and in my opinion it has not been shown that he gave the matter insufficient weight.

143. As to ground 4, the way in which the plea in mitigation was made justified the learned judge's concluding that the applicant had no remorse. Counsel who appeared for her before the jury - not counsel who now appears for her - represented her also on the plea on the day after the verdict was given. Had he thought that remorse might be demonstrated by telling the judge, after verdict, that the applicant had been willing to plead guilty to the count on which she was ultimately found guilty by the jury, it is fair to suppose that he would have done so. Counsel has sworn an affidavit which was tendered to us, deposing to the fact of her willingness. Assuming that we properly received the affidavit, I do not think it would be right to infer from it a measure of remorse which counsel below appears not to have been prepared to invite the learned sentencing judge to infer.

146. I would accordingly refuse the application. I would, however, respectfully associate myself with the remarks of the other members of the Court concerning cumulation of the sentences on counts 6 and 8.

149. In accordance with the majority of the Court, there will be judgment as follows:

Application for leave to appeal against sentence granted, appeal treated as instituted and heard instanter and allowed.

Sentence on count 4 set aside. In lieu order that the applicant be sentenced to be imprisoned on count 4 for 18 months. Direct that two months of the sentence on count 6 and two months of the sentence on count 8 be served cumulatively upon each other and upon the sentence on count 4. The total effective sentence therefore is one of imprisonment for 22 months. The Court directs that the applicant serve a minimum term of 16 months before becoming eligible for release on parole.

It is declared that the period of 489 days be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.