R v Kumar [2006] VSCA 182

Ms A. Cannon, Solicitor for the Office of Public Prosecutions

1 I have had the considerable advantage of reading in draft the reasons for judgment of Eames, J.A. I agree with his Honour's conclusions, for the reasons which he gives, and I agree that the applicant should be re-sentenced as his Honour proposes.

2 The applicant was convicted by a jury on count 2, a count of intentionally causing serious injury to Mamta Rani, in an incident that occurred on 11 December 2000 ("the 2000 incident"); on one count of attempted murder, of Mamta Rani (count 3); and one count of recklessly causing serious injury to Baljinder Kumar (count 6). The last two counts arose from events on 10 November 2003 ("the 2003 incident"). The applicant was acquitted on a number of counts on the presentment which constituted alternative counts relating to the two incidents. At the time of the 2000 incident the applicant was aged 25 years and he was aged 28 years at the time of the 2003 incident.

3 On count 2 the applicant was sentenced to six years' imprisonment; on count 3, to twelve years' imprisonment; and on count 6, to four years' imprisonment. The sentencing judge ordered that nine years of the sentence for attempted murder and one year of the sentence for recklessly causing serious injury be served cumulatively with the first sentence, producing a total effective sentence of 16 years' imprisonment. His Honour directed that the applicant serve 13 years' imprisonment before being eligible for parole. The applicant was sentenced on count 3 as a serious offender, pursuant to s.6F of the Sentencing Act 1991

4 The applicant applies for leave to appeal against his convictions and sentence.

5 Baljinder ("Billy") Kumar was the applicant's brother. He had married Mamta Rani in India in 1995 and as an Australian resident brought his wife to

Australia where she lived with her husband's parents. In 1997 Baljinder Kumar's parents decided that Ms Rani should divorce Baljinder and marry, instead, the applicant, in India, thereby enabling the applicant to enter Australia as a permanent resident. To that end, Baljinder and Ms Rani divorced in 1998, whereupon Ms Rani travelled to India to marry the applicant. In India, the applicant assumed a false identity, so as to disguise the circumstances behind his marriage to Ms Rani and using his false identity, he married Ms Rani, in India, in July 1998.

6 Whilst the applicant's visa application was being processed, Ms Rani returned to Australia in November 1998, and resumed cohabitation with Baljinder Kumar at his parents' house until the couple moved into residential premises above Baljinder's business in Campbellfield, which was known as "Bill's Trailers". The parents of the Kumar brothers were concerned about those arrangements and wanted Ms Rani to leave Baljinder in order to strengthen the appearance that she and the applicant were truly husband and wife. Ms Rani and Baljinder, however, continued to reside together.

7 On 30 October 2000, the applicant came to Australia on a temporary visa. On 11 December 2000 he, together with his sister, attended at the premises of Bill's Trailers in the early hours of the morning, whereupon an argument arose because of the applicant's insistence that Ms Rani leave Baljinder. As the jury verdict reflected, the jury found that in the course of the argument, the applicant picked up a steel bar from the floor and, holding it with both hands, hit Ms Rani on the head, once. Before he could hit Ms Rani a second time, Baljinder took the bar from him. The applicant then proceeded to hit himself, causing injury. When the two injured persons attended the hospital an agreed false story was given by all, that the injury to Ms Rani was caused when she hit her head on a roller door. She received stitches to her head wound and she was not admitted to hospital. No complaint was then made to police.

8 In his defence at trial the applicant gave evidence that it was Ms Rani who had picked up the pipe and struck him, causing him to bleed, and that as she then attempted to run out from the premises, she struck her head on the roller door. He denied threatening to kill Ms Rani and said he was not then angry with her. The jury rejected that account but did not, however, return a guilty verdict on the count of attempted murder. Instead, they convicted the applicant on the alternative count of intentionally causing serious injury.

9 In or about February 2001, after what she said was further harassment by the applicant and his family, Ms Rani took out an intervention order against the applicant. She later cancelled the order, at the request of Baljinder Kumar, so as to enable the applicant to apply for permanent residency. In order to support the application for permanent residency, and in furtherance of his application Ms Rani participated in the production of false evidence to support the applicant's contention that they were living in a marital relationship. As part of this process, Ms Rani lived with the applicant at jointly leased premises for a year, but then moved into a house which had been purchased by Baljinder Kumar. His Honour found, however, that the applicant and Ms Rani never, in fact, lived together as husband and wife.

10 In October 2003 immigration officers visited the house in which Ms Rani and Baljinder lived, but she pretended that she was living there with the applicant. In order to lend credence to that contention the applicant then moved into the house with Ms Rani and Baljinder, and remained for about two weeks.

11 On 10 November 2003, the applicant, who had been drinking, came to the house at about 8.00pm. An argument developed between the applicant and Baljinder, during which Ms Rani objected to insulting remarks being made by the applicant concerning her family. She told him that he was not welcome to attend the house if he was drunk, and Baljinder took Ms Rani's side. Ms Rani said that the applicant became very angry when she complained that he was drunk, despite the fact that she had told him "hundreds of times" not to come to the house when he was drunk.

12 Ms Rani told the jury that she walked to the kitchen and she was followed by the applicant who took a knife from a drawer and stabbed her in the neck, causing much blood loss. She tried to take the knife from him but cut her hand, and he then stabbed her again. In all, she was stabbed three times, including once to the back. As she was crouched on the floor, she pretended to be dead, and heard the applicant say in a happy voice, "She is dead". As a result of her injuries, she was in hospital for three days.

13 Baljinder Kumar said that he saw the applicant holding Ms Rani by the hair, with the knife in his right hand, but he denied seeing his brother strike Ms Rani. He said that the applicant was "swinging his arm drunkenly" and when Baljinder was attempting to separate his brother and Ms Rani the knife struck Baljinder to the chest. Baljinder said that a few minutes later, after Ms Rani had fled the house and Baljinder had followed her, the applicant, who had also left the house, stabbed Baljinder in the arm, before departing the scene in his car.

14 In his account to police the applicant had said that it was Ms Rani and Baljinder who had been arguing and who then engaged in a struggle. In the course of that struggle it was Baljinder who was holding a knife. Ms Rani fell to the floor and was bleeding to the neck. The applicant had not seen what happened to cause her injury but he tried to lift her up from the ground. At that moment, so the applicant told police, Baljinder was stabbing himself, whereupon the applicant took the knife from his brother and threw it away. That account was different to the one given in his evidence.

15 In his evidence, the applicant's account was that upon his arrival at the house he had found Baljinder and Mamta Rani naked and having sex in Baljinder's room. That was denied by them. The applicant said that he was angered by what he saw and argued with Ms Rani, and grabbed her hair. She moved into the kitchen and he followed her and grabbed her by the arm, whereupon she picked up a knife and stabbed him in the arm and in the buttocks. He said that it was in the course of him grappling to take the knife from Ms Rani that she fell to the ground and he found himself holding the knife. He did not see what caused her to fall. At this point his brother, Baljinder, started punching the applicant and, without the applicant stabbing Baljinder, the knife became stuck in Baljinder's arm. He said that Ms Rani was telling Baljinder to kill the applicant, at that time.

16 Two grounds for appeal concerning conviction were argued, all other grounds being abandoned.

Conviction ground 2: Directions on intoxication.

17 I deal first with ground two, which complained that the trial judge failed to adequately direct the jury with respect to the question of intoxication, with respect to proof of the intention required for each of the offences.

18 During the course of the charge, defence counsel asked the judge whether he would give directions concerning the relevance of intoxication with respect to the 2003 incident. Counsel submitted that the jury should be told to have regard to the effect of intoxication on the mind of the accused when determining whether he possessed the requisite intention for the respective charges. Additionally, he submitted, the jury should be directed that it was for the Crown to prove that he had the requisite intent, but counsel said he accepted that "Your Honour has gone into that to a degree on the question of intent to kill".

19 In his directions to the jury, the judge said this:

"(T)here is evidence, accepted I think by both sides, that Rajinder Kumar had been drinking on the evening of 10 November. You should have regard to the effect of that alcohol on him when you are considering whether or not he had the requisite intent. That is an element or a factor to be taken into account when deciding whether or not the Crown has proved beyond reasonable doubt that Rajinder had either the intention to kill, count 3, or the intention to cause serious injury, count 4."

20 After the judge gave those directions no further exception was taken.

21 Ms Dalziel, counsel for the applicant, submitted that the appropriate directions on intoxication were those stated in R v Faure[1] and R v McCullagh.[2]

22 As Brooking, J.A. (with whom Winneke, P. and Ormiston, J.A. agreed) observed in Faure, in any case where there was evidence of intoxication of the accused that fact might be relevant not only to the question of the voluntariness of the act performed by the accused but also to the question whether he held the requisite intent required for the offence.[3] In the present case the appeal ground, and argument, was concerned with the adequacy of the directions relating to the relevance of intoxication as to proof of intention to kill and as to intention to cause serious injury.

23 As to what constitutes an appropriate direction, Brooking, J.A. approved passages from the judgment of the Court of Criminal Appeal in R v Pearce & Castano.[4] In that case Young, C.J. and McInerney, J held:

" . . . it will generally be sufficient to tell a jury that they must be satisfied beyond reasonable doubt that in all the circumstances, including intoxication, the accused had in fact formed the necessary intent".[5]

" . . . it is in my opinion proper to direct the jury quite simply that, in deciding whether they are satisfied beyond reasonable doubt that the accused had the necessary specific intent, they should consider, inter alia, the evidence relating to intoxication".[6]

25 In his judgment in McCullagh, Winneke, P. (with whom Callaway, J.A and O'Bryan, A.J.A. agreed) cited with approval the judgment of Brooking, J.A. in Faure, but also approved passages from the judgment of Hunt, J. in R v Graham John Coleman[7] (a decision which had also been cited with approval by Brooking, J.A. in Faure). Winneke, P. agreed with Hunt, J. as to "the necessary directions" for intoxication concerning proof of specific intention. Hunt, J. held:

"The trial judge should direct the jury that the Crown must establish that the accused had in fact formed the state of mind which is relevant to the offence charged. In relation to that issue (if intoxication has been sufficiently raised in the evidence), the judge should tell the jury that the onus lies on the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused's intoxication. To do that the Crown must persuade them beyond reasonable doubt that the accused's state of intoxication was not such as to deny the existence of the relevant state of mind which may otherwise be apparent from all the other evidence in the case."[8]

26 Ms Dalziel submitted that the directions given by the judge were inadequate in that although the topics addressed by his Honour were, indeed, those specified in the passage in Coleman, cited above, greater elaboration was required, and, additionally, the judge failed to relate those directions to the evidence concerning intoxication and to the issues in the case.

27 The directions given by the judge on intoxication were not expansive, and might well have been inadequate for a trial where the extent of intoxication was in issue, but I agree with Mr Trapnell, counsel for the respondent, that the scope of the directions was adequate, having regard to the evidence in this case and to the way the issue was dealt with by both prosecution and defence.

28 The evidence as to intoxication was in short compass. When questioned by police the applicant said that he was drunk when he entered the premises. In his evidence the applicant said: "I was not aware how it happened because all this happened in the struggle and I was drunk, too. I didn't want to stab her". The applicant's contention that he was "drunk" was not challenged by Ms Rani or by Baljinder Kumar. Indeed, both used the same word to describe his condition. Baljinder said that he himself had been drunk.

29 The fact that the two complainants adopted the description of the applicant as being "drunk" may well have overstated the extent of his intoxication, because he had not only been capable of driving his car to the house prior to the stabbing, he also drove away from the scene - without apparent difficulty - and was alert enough to take steps which were designed to evade arrest or implication in any offences. Thus, it was no doubt advantageous to the defence concerning the 2003 incident to leave the evidence as being that the applicant was "drunk", without closer analysis by his Honour of the evidence concerning the applicant's capacity to form the relevant intentions.

30 There was no dispute at trial, therefore, about whether the applicant was intoxicated; that was common ground. The applicant's case was that both the stabbing of Ms Rani and that of Baljinder Kumar occurred by accident, not that they were the deliberate acts of a man who was nonetheless incapable of forming an intention as to the consequences of the stabbings, because he was drunk. The alternative basis on which the jury may have entertained reasonable doubt, namely, that the applicant may have consciously and voluntarily stabbed either complainant but did so when his drunkenness deprived him of the capacity to form the relevant intention, was not advanced by defence counsel, no doubt for the good reason that this argument tended to cut across the primary defence of accident.

31 His Honour's directions about intoxication followed immediately after the judge had summarised the defence case (on the question whether the applicant had the requisite intent for conviction) as being that the applicant had not deliberately stabbed either complainant. If the jury had had a reasonable doubt as to that issue, with respect to either complainant's stabbing, then the verdict in that instance must have been 'not guilty'. At the request of defence counsel the jury were given detailed directions as to the elements of intention and recklessness for each offence, which were relevant to the situation where either stabbing was deliberate but was not accompanied by the relevant intention. The directions were not elaborate, but had the virtue for the defence that, whilst drawing attention to the issue of lack of intent accompanying a deliberate stabbing, they did not undermine the primary defence of accident.

32 In considering the adequacy of directions concerning the effect of intoxication on the formation of intention, it must be kept in mind that the question whether a person is so drunk as to be incapable of forming the relevant intention is not one that would be difficult for a jury to assess. Such an issue is one on which the jury would readily apply its own common sense and worldly experience, once the issue was clearly brought to their attention, as it was here.

33 Given the very limited evidence and lack of controversy concerning the applicant's state of intoxication, and having regard to the way in which the applicant made his defence at trial, his Honour adequately identified the evidence concerning the applicant's state of intoxication when he dealt with the issue in the course of his summary of the evidence in the case. More detailed elaboration of the evidence concerning intoxication was unnecessary in order for the jury to understand and decide the issues in this case.

34 A decision taken by trial counsel not to seek a direction, or further direction, is a relevant factor when assessing whether such a further direction was required in order to avoid a miscarriage of justice.[9] In this case it may well be that defence counsel made a calculated decision not to seek further directions, because the issue of intoxication carried dangers for the defence. Had counsel sought further directions, or greater emphasis on the issue, then the applicant ran the risk of the judge also providing the additional direction which Hunt, J. said in Coleman would be appropriate to add by way of balance to the other directions he deemed appropriate. Hunt, J. held that, in addition to the directions earlier discussed, the judge should tell the jury that intoxication does not amount, in itself, to a defence, and should add that in many cases it does no more than remove inhibitions or self-restraint and create a sense of self-confidence and, perhaps, aggression. That rider was one also accepted by Brooking, J.A. in Faure.[10] Winneke, P. agreed in McCullagh[11] that such additional directions should be given in an appropriate case. The trial judge here might well have decided that this was such a case, had additional directions been sought by the defence.

35 Thus, a decision not to seek additional directions, or elaboration on the evidence concerning intoxication and intention, would have been a rational and tactical one for defence counsel to have taken, given the potential for elaboration of directions on the question of intoxication to have undermined the defence of accident.

36 In my opinion, the directions on intoxication were not deficient in the context of this case, and this ground is not made out.

Conviction ground 3: Lies in consciousness of guilt

37 In the course of his evidence the applicant admitted that he had told a number of lies to police when they interviewed him. In discussion in the absence of the jury the prosecutor sought to rely on those lies as evidence of consciousness of guilt and to similarly rely on evidence of his flight after the stabbing and of his disposal of the knife. After hearing argument, the judge ruled that none of the identified lies or conduct could be put to the jury as evidence of consciousness of guilt, save for two lies which related to the incident in 2000. In the result, the prosecutor did not rely on any lies in proof of guilt for any of the offences.

38 Following the judge's ruling, no complaint was made by defence counsel as to the approach the prosecutor adopted in her address concerning the use of lies, which she confined to the question of the credibility of the account given by the applicant. No exception was taken to the judge's directions as to the lies told by the applicant, and his Honour, too, confined the relevance of lies to the consideration of the credit of the applicant.

39 Ms Dalziel contended that, although the prosecutor did not submit to the jury that the applicant had told lies out of a consciousness of guilt, there was a danger that the jury would have reasoned by way of an impermissible use of the evidence of lies, such danger requiring a direction in terms discussed in Zoneff v The Queen.[12]

40 The direction which was endorsed in the joint judgment in Zoneff was one said to be appropriate in cases where, notwithstanding that lies had not been relied on by the prosecution in proof of guilt, the trial judge was concerned that there remained "a risk of misunderstanding about the significance of possible lies", in that the jury might treat the lies as proof of guilt by adopting consciousness of guilt reasoning.

41 In this case the judge expressly considered the question of the use that might be made by the prosecutor of lies and the necessity for directions concerning lies. The judge ruled on the topic and the prosecutor, in compliance with that ruling, eschewed reference to lies in her address save for purposes of attacking the credibility of the applicant. Defence counsel, having received favourable directions as to the use of lies, made no complaint as to the approach adopted by the prosecutor and did not seek any direction from the judge with respect to lies.

42 The mere fact that the prosecutor avoided use of the words "consciousness of guilt" when addressing the jury would not remove the need for an appropriate direction, if the effect of the prosecutor's address was to invite the jury to make use of lies as proof of a guilty mind or as amounting to an admission of guilt. As Ormiston, J.A. held in R v Chang:[13]

"If the evidence and its use by the prosecution is intended to show that such lies or other acts could not have been perpetrated unless the accused was implicitly admitting his or her guilt, then the need for the warning remains. If a lesser use of that evidence by the jury is

intended and sought by the prosecution, then the absence of a warning will ordinarily cause no harm".

43 In the present case, the fact that neither defence counsel nor the prosecutor sought a direction in terms of Zoneff - a case very familiar to criminal lawyers - is a strong pointer to the fact that neither counsel discerned there to be the risk which the High Court addressed in that case. Plainly, the judge also saw no such risk.

44 I am not persuaded that any risk of misuse of lies by the jury did arise in this case. I reject this ground of appeal.

Sentence appeal

45 I will deal first with Ground 2 of the grounds of application for leave to appeal against sentence. That ground identifies two factors referred to by the judge in his sentencing remarks which are said to have been treated by him as aggravating factors but which findings, so it is said, had not been proved beyond reasonable doubt.

46 In the first of the disputed passages the judge said that the applicant attacked Ms Rani under the mistaken impression that she was not doing all that she reasonably could to ensure that he was granted permanent residency. I agree with Mr Trapnell that the passage did not amount to a finding of an aggravating factor, but, rather, that his Honour was simply identifying the issues which might have caused the applicant to act as he did. His Honour said that he was unable to say which factor triggered the applicant's action.

47 The second passage which was said to constitute an adverse finding as to an aggravating factor was that the applicant and his family "used Ms Rani to further his plans to live in Australia". In the course of argument Ms Dalziel extended the complaint to a further passage in which his Honour found that the applicant and his family "assumed the right to dictate to her with whom she should live and even whether or not she should be required to have an abortion".

48 Mr Trapnell conceded that it was not open to his Honour to have concluded that it was the applicant, rather than his brother, who dictated to Ms Rani that she must have abortions. He submitted, however, that the mistake was immaterial because his Honour was not identifying an aggravating factor but was merely responding to suggestions made by some of the character witnesses that the stabbings were somehow the fault of Ms Rani. I agree that that is the context in which this discussion occurred, and I am not, therefore, persuaded that his Honour fell into error in making findings against the applicant which were not open and which were used to aggravate the seriousness of the offending. I would not uphold ground 2.

49 Sentencing ground 1 complains that the three sentences, the total effective sentence and the non-parole period were all manifestly excessive.

50 In considering the question of manifest excess as to the sentences imposed, I address count 2 first, the conviction for intentionally causing serious injury arising out of the 2000 incident. The maximum penalty for that offence was 20 years' imprisonment.

51 As the jury must have found, the assault in 2000 was done with the intent, and the result, of causing serious injury to an unarmed woman, but was not done with an intent to kill. The applicant's conduct, and that of his sister, on this day displayed an attitude towards the subjugation of Ms Rani that offends community standards in this State. As earlier noted, the applicant and his family prevailed upon Ms Rani to enter into a sham marriage with the applicant, and the 2000 incident reflected that the applicant and his sister regarded it as their right to demand that Ms Rani cease her relationship with Baljinder Kumar, in order to maintain the pretence of a genuine marriage. That was done in order to advance the applicant's prospects of gaining permanent residence in Australia, and without any regard for the wishes of Ms Rani. The applicant showed no remorse for the violence which constituted the 2000 offence. From the outset, he lied about the incident and required Ms Rani to support the lie. Furthermore, he does not gain any credit for remorse which pleas of guilty would have allowed.

52 That said, his Honour accepted that the assault arose spontaneously. The applicant did not attend the factory with any plan to assault Ms Rani. Furthermore, and notwithstanding the apparent notion of male hegemony over women that accompanied the assault, it was not an instance of the offence which placed it at the more serious end of the scale of such offences. The injury suffered was not of such seriousness as to require hospitalisation, and apparently had no long term consequences.

53 Although the applicant's character was seriously compromised by the manner in which he came to enter the country, and by the lies and deception whereby he sought to stay here, he had no prior convictions when this offence occurred. In addition, there was a very substantial delay, of nearly three years, before he was charged with the offence. Furthermore, the subjugation of the rights of Ms Rani, which characterised the applicant's conduct towards her, was the conduct of a man with an extremely low full-scale IQ, of 60, as measured by psychologist Mr Bernard Healey. Whilst, as I shall discuss, his Honour had some reservations about the IQ test results as providing a complete picture of a intellectual capacity of the applicant, he did not reject the results outright.

54 In my opinion, the sentence of six years' imprisonment on count 2, imposed on the applicant as a first offender, is outside the range appropriate to the offence, and is manifestly excessive.

55 More difficult is the question whether the sentence on count 3 was manifestly excessive. The maximum penalty for attempted murder is 25 years' imprisonment, and this was a serious instance of the offence. The judge did accept that the stabbing was spontaneous, and that the applicant's loss of self-control was, in part, a product of his intoxication, although his Honour found that anger and jealousy also played a part.

56 The applicant inflicted multiple stab wounds, to Ms Rani's neck, right ear, chin and cervical spine area, and also to the right arm, hand and fingers. The neck injury was only millimetres to centimetres from the carotid artery, and was close to the jugular artery. In the literal sense, Ms Rani narrowly avoided death. The wound was 10.5 cm deep. The wounds to the right ear, cervical spine and right arm were superficial but the injury to the right chin and left mandible was 5cm long.

57 Ms Rani was pregnant when she was stabbed. Although the learned sentencing judge did not make a specific finding that the applicant knew that to be the case, it was implicit in his sentencing remarks. Ms Rani told the court that Baljinder Kumar was the father. In his evidence the applicant admitted that he knew Ms Rani was pregnant, although he did not expressly concede that he knew he was not the father. The pregnancy was of great concern to Ms Rani in the course of the applicant's attack on her. She tried to protect her unborn baby from injury, by protecting her stomach and then pretending to be dead. Furthermore, the fact that she was pregnant complicated Ms Rani's treatment when she was admitted to hospital, and the doctors had to ensure that the unborn child was not irradiated when the mother was given a CT scan.

58 The complainant suffered scarring, particularly to the left chin and right side of the neck. Ms Rani's victim impact statement discloses the severe emotional impact of the scarring on her self-image. She has been advised that she cannot undergo plastic surgery to correct the scars. Her anxiety about her appearance has made her reclusive. She lost her job. A report of psychologist Ms Juliette Hooper, which accompanies the victim impact statement,[14] identifies serious psychological symptoms from which Ms Rani suffers. At the time of the report Ms Rani was receiving regular counselling.

59 It must be said that the facial scarring, whilst serious and naturally distressing to Ms Rani, is confined in area, although the applicant ought gain only limited benefit from that purely fortuitous result. Furthermore, it is not so much the size and severity of the scarring, per se, that is important, but the impact of the scarring upon the life of the victim. The impact in this case has been considerable, and understandable.

60 The sentence of 12 years' imprisonment places this instance at the high end of the range of sentences for attempted murder, having regard, in particular, to the fact that, although the 2000 incident had occurred, the applicant had no prior convictions when this offence was committed. However, as has been discussed above, there are a number of factors that justify it being placed at that end of the range. In addition, there is a complete lack of remorse on the part of the applicant for the 2003 offences, which is a very important factor in this case, given the arrogant and offensive notions which, coupled with jealousy, underlay the offence against Ms Rani and reflected the need for specific deterrence, and that regard be had to general deterrence, albeit moderated in its application.

61 His Honour held that the applicant did not suffer from a mental illness but accepted that his limited intellectual capacity, as tested, meant that he ought to moderate sentence on two bases. First, the applicant's intellectual disadvantage would make imprisonment more difficult for him than for prisoners not so disadvantaged. Secondly, his limited intellectual capacity required moderating of the requirement for general deterrence in this case. In my opinion, his Honour was correct to mitigate sentence for those reasons. His Honour did not, however, moderate the factor of specific deterrence. In declining to moderate the factor of specific deterrence, his Honour noted that there had been two separate assaults on Ms Rani in three years, and that the applicant tended to blame the victim for the assaults on her.

62 In R v Bux,[15] the applicant had similar low IQ scores to those of the present applicant. The offender in that case had pleaded guilty to manslaughter, having acted under the strong influence of another offender who had pleaded guilty to murder. I held that, by virtue of the applicant's intellectual disadvantage, both the factors of general and specific deterrence had to be suitably moderated. Batt, J.A. and O'Bryan, A.J.A. agreed with my reasons.

63 The present case can be distinguished from Bux in two important ways. In the first place, Bux was not a case where the applicant fell to be sentenced as a serious violent offender. Thus, although in Bux Batt J.A. stressed the importance of the protection of the community, that case was not, as here, governed by s.6D of the Sentencing Act 1991, which required the sentencing judge to regard the protection of the community as the principal factor for sentencing. Secondly, the learned sentencing judge in the present case expressed caution as to the significance of the findings as to the IQ of the applicant.

64 His Honour, having observed the applicant give evidence in the trial, considered that the applicant's intelligence and appreciation of issues was greater than his low IQ testing results would suggest. The evaluation of the IQ of the applicant had been conducted through an interpreter. In my view, it was open to his Honour to approach the IQ results with the degree of caution he expressed, and it was therefore not inappropriate that he regarded specific deterrence as being of undiminished importance in sentencing the applicant on this count, having regard to the fact that protection of the community was the principal sentencing factor he had to apply.

65 Although the sentence for attempted murder is a stern one, perhaps more severe than some judges may have imposed, I am not persuaded that it is outside the range available to the sentencing judge and is, therefore, manifestly excessive. I would not interfere with this sentence.

66 The sentence of four years' imprisonment for the reckless causing of serious injury to Baljinder Kumar was also a severe one. He suffered an 8mm incision near his ring finger, a 6 cm wound to the bicep, a 2 cm wound to the upper chest and otherwise bruises and abrasions. The jury held his injuries to be serious, but they were at the lower end of such level of injury. The applicant's assault on his brother occurred after the applicant's attack on Ms Rani. His Honour regarded it as aggravating the offence that these injuries were not inflicted at the same time as the injuries to Ms Rani, and hence were not done in the heat of that struggle, but occurred after a delay, when the applicant had had time to regain composure. The delay between the two events was brief, however, and the stabbing of Baljinder Kumar was substantially part and parcel of the one incident, in my opinion.

67 The maximum penalty for this offence is 15 years' imprisonment. His Honour said little about the offence in his sentencing remarks, although he acknowledged that the jury found "no relevant intent". The injuries suffered were at the lower end of seriousness and, in my opinion, the sentence of four years' imprisonment was so severe as to be manifestly excessive.

Re-sentencing

68 Having concluded that two of the three sentences were manifestly excessive I would re-sentence the applicant as follows:

On count two, I would substitute a sentence of three years' imprisonment.

On count six, I would substitute a sentence of two years and six months' imprisonment.

69 His Honour treated count 2 as the base sentence, probably in recognition of the terms of s.6E of the Sentencing Act. His Honour did not consider that the whole of the sentence imposed on count 3 should be served cumulatively with the sentence on count 2 and I agree that the Court should direct that total cumulation of that sentence not occur. It is, however, possible to apply s.6E while making count 3 the

base sentence and it is appropriate to do so, in my opinion. I agree with his Honour that the effect of the sentence should be that there is a measure of cumulation of sentence on the two other counts.

70 Accordingly, I would order that 12 months of the sentence on count 2 and nine months of the sentence on count 6 be served cumulatively on each other and on the sentence imposed on count 3. That produces a total effective sentence of 13 years and 9 months' imprisonment. I would order that the applicant serve 10 years' imprisonment before being eligible for parole.

71 I have had the great benefit of reading in draft the reasons for judgment of Eames, J.A. Like Maxwell, P. I agree with his Honour's conclusions, for the reasons which he gives, and I agree that the applicant should be re-sentenced as his Honour proposes.

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[1] [1999] VSCA 166; [1999] 2 V.R. 537 at 544-545 per Brooking, J.A.

[2] [2002] VSCA 163 at [15]-[16] per Winneke, P.

[3] At 545 [25].

[4] Unreported, 19 December 1978.

[5] At 4.

[6] At 7.

[7] (1990) 19 NSWLR 467.

[8] At 486. Emphasis in original.

[9] R v Arundell [1998] VSCA 102; [1999] 2 V.R. 228, at 247-250, per Callaway, J.A.; R v Spina [2005] VSCA 319, at [13].

[10] See [19]-[24].

[11] At [15].

[12] (2000) 200 C.L.R. 234, at 245 [23]-[24].

[13] [2003] VSCA 149; (2003) 7 V.R. 236, at 239 [5].

[14] In the course of the appeal hearing counsel for the applicant queried the entitlement of the applicant to accompany her victim impact statement with a report from a psychologist. No objection was taken to that course by defence counsel below, and no ground of appeal complains about the course adopted. In those circumstances the issue does not properly fall for determination. In any event, the victim impact statement of the complainant, even if taken alone, would support the conclusions reached by his Honour as to the impact of the offence on Ms Rani.

[15] [2002] VSCA 126; (2002) 132 A.Crim.R 395.