R v Sa [2004] VSCA 182

Court of Appeal (Vic)|2004-10-07|Before: CALLAWAY, BUCHANAN and EAMES, JJ.A.

Criminal law - Sentencing - Aggravated burglary - Intentionally causing serious injury - Leave to appeal granted by single judge - Developments subsequent to grant of leave - Whether leave to appeal should be rescinded - Prevalence of offence - Forgiveness by, and attitude of, victim - Total effective sentence of four years' imprisonment with non-parole period of two years not manifestly excessive - Appeal dismissed - Crimes Act 1958, ss.16, 77, 582 - Sentencing Act 1991, and (db).

The appellant was sentenced to two years' imprisonment on one count of aggravated burglary and three-and-a-half years' imprisonment on one count of intentionally causing serious injury. A direction for cumulation resulted in a total effective sentence of four years' imprisonment, in respect of which a non-parole period of two years was fixed. Leave to appeal was granted by a single judge of appeal pursuant to s.582 of the Crimes Act 1958 on 11th June 2004. After that date the Court decided three cases on intentionally causing serious injury,[1] which emphasized the potential gravity of the offence and the caution to be exercised with respect to sentences passed when the maximum penalty was twelve-and-a-half years' imprisonment.[2]

In the light of those three decisions and the facts of the present case as disclosed in the appeal book, we listed the appeal for mention the day before it was due to be heard and informed counsel that, when it was called on for hearing, we desired to hear submissions first on the question whether leave to appeal should be rescinded.[3]

We were concerned that the appeal might now have insufficient prospects of success even if one or more of the specific errors alleged were made out.[4] Mr Priest persuaded us that the appeal should proceed, which proves once again that natural justice is no idle ceremony. That is not to say that, in a different case, developments, whether of law or fact, after the s.582 application might not make it more appropriate to rescind leave to appeal. Whenever the Court hears a case unnecessarily, a fortiori where judgment has to be reserved, another appellant has to

I agree with Eames, J.A., for the reasons his Honour gives, that the appeal should be dismissed. The community, and not just the immediate victim of an offence, has a right to peace and order.[5]

I agree with Eames, J.A. that the appeal should be dismissed for the reasons stated by his Honour.

The appellant pleaded guilty in the County Court to one count of aggravated burglary, contrary to s.77(1) of the Crimes Act 1958 ("the Act"), which offence carried a maximum penalty of 25 years' imprisonment and to one count of causing serious injury intentionally, contrary to s.16 of the Act, which offence carried a maximum penalty of 20 years' imprisonment. After hearing submissions on sentence the learned sentencing judge, on 20 November 2003, sentenced the appellant to two years' imprisonment on count 1 and to three years and six months' imprisonment on count 2. His Honour ordered that six months of the sentence on count 1 be served cumulatively upon the sentence imposed on count 2, thus producing a total effective sentence of four years' imprisonment. His Honour fixed a non-parole period of two years' imprisonment. There had been no pre-sentence detention.

On 11 June 2004 the appellant was granted leave to appeal by a single judge and on 23 July 2004 the Registrar granted leave to the appellant to amend the grounds of appeal; in consequence there were four grounds of appeal before us. Those grounds read as follows:

"1. In all the circumstances - (a) the individual sentences on each count; (b) the total effective sentence; and (c) the non-parole period; are manifestly excessive. 2. The sentencing judge erred in that he took into account `a disturbing prevalence of offences of violence with these types of weapons in our community' - (a) without warning of his intention to do so; (b) absent any evidence of the suggested prevalence having been received. 3. The sentencing judge erred in that he failed to take into account sufficiently or at all - (a) the forgiveness of the applicant by, (b) the personal circumstances of, and (c) any injury, loss or damage to - the victim, Lale Tofa. 4. The sentencing judge erred in that he failed to take the plea of guilty sufficiently into account; and in particular - (a) the stage at which it was entered; (b) the accompanying remorse."

The appellant, an Australian citizen, was born in Western Samoa on 11 September 1974 and was 28 years of age at the time of the offences. The victim of the offences, Mr Lale Tofa, was aged 47 years at the time of the offences, had also been born in Western Samoa and was the appellant's cousin.

The appellant came to Australia in 1991 when he was approximately 16 years of age. At that time he did not speak English but after completion of an English language course completed Year 10 and commenced Year 11 at Palmore Boys' High School in Western Sydney. He subsequently moved to Victoria. The appellant had seven brothers and six sisters. At the time of these offences three of his siblings resided in Sydney and one sister, Malacula Mati, resided in Melbourne. Malacula came to Australia in 1988, had married in Australia and had two children by that marriage, and another child, Toliso, who was aged 20 years at the time of these offences. Approximately seven years before these offences were committed Malacula had left her husband and commenced a relationship with Lale Tofa (who was himself married at the time). She had one child by Lale Tofa after commencing that relationship. The offences occurred at the home shared by Lale Tofa and Malacula Mati in Springvale on Sunday 2 March 2003.

The learned sentencing judge heard evidence that in Western Samoan culture it was considered to be a highly embarrassing and shameful event for an adulterous relationship to have occurred in such circumstances. His Honour heard and accepted evidence that brothers were expected to be protective of their sisters and to look after their best interests and the appellant gave evidence that he felt "very down and shameful" by virtue of the fact that the relationship had commenced at all, and had then continued. He considered that he had responsibility in trying to ensure that his sister broke up the relationship and returned to her husband. He said he had endeavoured on approximately four occasions to persuade his sister and Tofa to cease their relationship but they had rejected his counselling. He said he felt that within the Samoan community in Australia people were laughing at or criticising him for his failure to put an end to the relationship. He told his Honour that it was "a very shameful thing for a brother" to have his sister engage in a relationship in such circumstances.

On Sunday 2 March 2003 the appellant had arranged a barbecue at his home, in order to farewell his niece Toliso who was travelling to Sri Lanka with her husband. The appellant had a particularly close relationship with Toliso and his arrangement of a farewell barbecue was regarded within Samoan culture as an appropriate and important step for him to take as her uncle.

A week before the barbecue Tofa had assured the appellant that he and his sister would attend the barbecue but then, without giving notice that he had changed his mind, both Tofa and Malacula failed to attend the barbecue. The appellant considered himself to have been insulted by their absence and telephoned Tofa, whereupon a very heated exchange took place between them. In the course of the argument the appellant threatened to go to the home of Tofa and "chop off his head". Tofa responded by inviting the appellant to do as he threatened, and said that he would wait for him. He told the appellant that if he arrived he, Tofa, would fight him. Tofa was drunk and, speaking in Samoan, said that if the appellant came to his house Tofa would tie him up and put him on the fire. After hearing expert evidence as to the meaning of that expression the learned sentencing judge found that it was a very provocative remark to a person of Samoan culture, implying that he was a pig.

Upon being so insulted, the appellant stormed out of the house, arming himself with a machete, and drove from his home in Epping to the victim's home in Springvale. The appellant's wife, who was not of Samoan descent, and had not understood what had been said in Samoan, was sufficiently alarmed by what she had heard to telephone the appellant's sister Malacula, to warn her and Tofa that the appellant was travelling to their home and was armed. Tofa, having been warned, ignored that warning. Whilst on the 40 minute journey to Tofa's home the appellant received and read, but then ignored, a text message sent to his mobile phone by his wife urging him to return home. The appellant continued his journey.

Upon his arrival at the home of Tofa the appellant did not enter through the front door, as he normally would after knocking, but entered through the unlocked rear door and walked into the bedroom where Tofa was playing with two small children, aged three and four years. Tofa had his back to the appellant, who struck a severe blow to the back of Tofa's head with the machete. That blow was sufficient to render Tofa unconscious but the appellant struck a second blow to Tofa's neck. A medical practitioner described the two injuries as follows:

"[A] deep posterior transverse based lower cervical wound with the wound extending as deep as the spinous process. The wound had sharp, well-defined edges and was contaminated with foreign material. [A] separate parietal occipital skull laceration that had penetrated through the full thickness of the skull, inner and outer table, and had sliced through an approximately three inch section of skull circumferentially."

The victim underwent surgery whereupon twenty stitches were inserted in the skull and seventy-five metal staples were required in order to close the skull wound. Titanium plates and screws were fitted to the skull. The doctor reported that both the skull and neck wounds were consistent with forceful sharp blows with a sharp implement. When the blows were struck the victim had his back to the appellant and had taken no step to protect himself. The wounds were inflicted in the presence of the two children. His Honour rightly described this as being "a vicious and cowardly attack with a weapon upon a defenceless man".

As noted by Callaway, J.A. in his reasons, at a mention hearing on the day preceding the listed hearing date of the appeal, the Court gave notice to counsel that they should address the question whether in light of events that had occurred since the granting of leave to appeal, that grant of leave ought be rescinded. Thus forewarned, Mr Priest mounted what proved to be a persuasive answer to the suggestion that leave to appeal ought be revoked.

The Court had been prompted to query whether the grant of leave remained appropriate by virtue of three judgments of the Court, all of which were delivered on 19 August 2004 (R. v. Huynh[6], D.P.P. v. Zullo[7] and D.P.P. v. Lawrence[8]), in each case the Court being constituted by Winneke, P., Batt and Nettle, JJ.A,. Each of those cases concerned instances of the offence of intentionally causing serious injury, and the judgments of the Court arguably reflected a view that the penalties imposed in the past by sentencing judges for such offences had generally been inadequate and that the "tariff' for such offences should be regarded as having been increased by the Court. Mr Priest submitted that the three cases ought not to be regarded as making such a statement with respect to sentences imposed in future for such offences.

In R. v. Huynh the appellant, who was aged 22 years at the time of the offences, had been sentenced to nine years imprisonment with a non-parole period of six and a half years, the offence of intentionally causing serious injury having produced a sentence of 8 years in itself and one year`s imprisonment being cumulated for a count of robbery. It was an unprovoked attack with a metal bar on a man who, having been robbed by the appellant after leaving a train on which they had both travelled, had merely asked for his mobile phone to be returned to him. The attack resulted in severe injuries, including the loss of an eye, and lifetime disabilities for the victim. After a trial the appellant was convicted, and he admitted prior convictions which included some nine instances of intentionally or recklessly causing serious injury, and in addition instances of robbery, assault in company, assault by kicking and a large number of other offences. He had served youth detention or been imprisoned many times.

In his reasons, with which the other members of the court agreed, Nettle, J.A. rejected the contention that the sentence was manifestly excessive or failed to give proper weight to considerations of youth or prospects of rehabilitation. Whilst agreeing with the remarks of Batt, J.A. in R. v. Teichelman[9] that each case must be judged on its own facts, Nettle J.A. held that the case on appeal was an instance where notwithstanding the youth of the offender the needs for denunciation, punishment and specific deterrence were paramount.[10] As to prospects of rehabilitation, his Honour concluded that the appellant had rejected many chances offered in the past and had "thumbed his nose" at authorities, thereby rendering any prospects of rehabilitation insignificant. I agree with Mr Priest that it was only against that backdrop that Nettle J.A. (having said that a sentence of 8 years was a "stern" sentence for a youthful offender) made his observation that "a sentence of eight year's imprisonment is a long way from the very top of the sentencing range for intentionally causing serious injury"[11].

The two other judgments delivered by the Court on the same day as that in Huynh were both Director's appeals, where complaint was made of manifest inadequacy in the sentences.

In D.P.P. v. Zullo the Court allowed the appeal and increased a sentence of three years six months imprisonment, with a non parole period of two and a half years, to a sentence of seven years, with a non-parole period of five years. In allowing the appeal Nettle, J.A., with whom the other members of the Court agreed, observed that the sentence which had been passed by the judge implied that the offence was towards the lower end of the scale, whereas it was a cowardly, unprovoked and vicious attack, producing lasting injuries on a member of the public who had been minding his own business[12]. The victim was attacked after leaving a train on which the offender had also travelled, having, it seems, caused offence by the way he looked at the offender. His Honour made the following observation:

"[10] It is said that the longest sentence ever imposed in this State for an offence of causing serious injury intentionally is ten years' imprisonment, and it has been said that it is only the most serious cases of the offence that have attracted a sentence within what is described as `the very top of the range' of between six and ten years. In the past that may have been so. When it was the case, a sentence for this offence of three-and-a-half years' imprisonment with a non-parole period of two-and-a-half years might have been within the range. But it is no longer the case. The so-called `very top of the range' of six to ten years was established when the maximum penalty for causing serious injury intentionally was only twelve years and six months' imprisonment. The maximum penalty is now almost double that amount. Now the `very top of the range' is upwards of fifteen years. [11] It has also been said that the sentence to be imposed for an offence of causing serious injury intentionally should be considered in the context of what might be appropriate for a case of manslaughter. With respect, I would agree with that sort of approach, provided all that is meant is that a particular case of causing serious injury intentionally may be so grave and productive of consequences so serious as to warrant a penalty similar to the penalty for manslaughter. But I do not accept that a sentence for causing serious injury intentionally may not ever exceed the sorts of sentences that are imposed for less serious forms of manslaughter. A head sentence of six or so years may be imposed for some forms of manslaughter at the lower end of the range, although of course much will depend upon the age and antecedents of the offender and the prospects of rehabilitation. But where a sentence of that order is given for manslaughter, the offence is more often than not a case of accidental homicide. It does not often involve an intention to inflict serious injury. Contrastingly, an intention to cause serious injury is of the essence of the offence of causing serious injury intentionally and in that respect the latter is a graver offence than unintentional homicide. Depending upon the circumstances, I consider that a sentence for a serious case of causing serious injury intentionally may well exceed a sentence for manslaughter at the lower end of the scale." [Footnotes omitted]

Once again, those statements must be read in the context of the case then under appeal. In that case the attack was described as vicious and frenzied. Having beaten the victim unconscious, the offender repeatedly kicked him to the head and body, causing massive injuries including a closed head injury, facial fractures and very severe bruising. The victim was placed in intensive care and was hospitalised for some three weeks. The Court found that it would be a long time before he recovered from the physical and psychological injuries he suffered. The offender, who was aged 34 years, had been released from prison only that day, having served a sentence for offences including intentionally causing serious injury, criminal damage and making a threat to kill. He had more than sixty previous convictions, from twenty appearances, including many for violence.

As Nettle, J.A. noted, the maximum sentence for intentionally causing serious injury had been increased by Parliament from twelve and a half years to twenty years[13], and sentences imposed on offenders under the earlier regime could now provide little guidance as to what penalty might be imposed for serious cases under the new regime.

In the third case, D.P.P. v. Lawrence Batt, J.A. wrote the leading judgment, and the two other members agreed with him. That again was an instance of a particularly grave and prolonged attack by a young offender (aged 20 years) who had a very large number of prior convictions for multiple offences of armed robbery, causing serious injury recklessly, and causing injury recklessly, among many others. The victim had been beaten senseless and then repeatedly kicked, had his head dropped on a concrete floor, had a bottle broken over his head and then used about twelve times to his face and body. The victim suffered multiple fractures to the skull, among many other injuries, and was in a coma for days from which it had been feared he would not survive. Batt, J.A., having expressly observed that each case must be judged by reference to its own circumstances, including the circumstances of the offence and the offender, held that this was an instance where because of the gravity of the particular instance of the offence the youth and prospects of rehabilitation of the offender must be given much less significance than would have been the case for a less serious offence[14].

When the three decisions are closely examined it is clear that there is much force in Mr Priest's contention that the observations of the Court must be considered in the light of the substantial aggravating features accompanying the offending in those cases. Whilst those cases undoubtedly alert the courts against assessing appropriate sentences for this offence by reference to cases decided when the present maximum penalty did not apply, I agree with Mr Priest that the Court should not be taken to have been announcing that an overall increase in sentences for this offence ought now be generally applied. Each case will continue to be assessed by reference to its own circumstances, having regard to the maximum penalty now provided.

Having had the benefit of Mr Priest's helpful analysis of the three cases, the Court concluded that this was not an appropriate case for revoking the grant of leave to appeal.

In the course of his reasons the learned sentencing judge said:

"You have armed yourself with a machete and attacked a defenceless man from behind in his own home in front of children. There is a disturbing prevalence of offences of violence with these types of weapons in our community"

Mr Priest submitted that these remarks betrayed error. In the first place, there was no basis for the assertion that there was a prevalence of such behaviour with such weapons involving Samoan men. Further, the judge did not put counsel on notice that he was having regard to the question of prevalence of such offending, thus the appellant was denied procedural fairness by being deprived of an opportunity to meet the issue in argument. It is contended that specific error is disclosed under this ground and the sentencing discretion ought be re-opened.

It is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he or she has knowledge without giving counsel the opportunity to address and answer those facts, but that is not so when the facts are a matter of notoriety: see R. v. Li[15]. In such a case counsel should know, without being told, that such an adverse factor is likely to be taken into account: see R. v. Downie & Dandy[16]. Mr Priest did not deny that the judge would have been entitled to observe that there was a disturbing prevalence of the use of machetes as a weapon among gangs of young men, in particular involving Asian youths. He agreed that no notice would need to be given to counsel that such an observation was likely to be made, and to be a factor leading to an increase in sentence, provided, he submitted, that the judge was dealing with a case of violence by a young gang member armed with a machete. This was not such a case, he submitted, and counsel could not have anticipated that prevalence of the use of such weapons would be a factor taken into account adversely, or at all, by the judge.

In my opinion, the observation made by the judge was one which was open to be made by him, and did not require that notice be given to counsel. In my view, it is plain that counsel then appearing for the applicant was very conscious of the fact that the choice of a machete, as the particular weapon to be used, would be regarded as an aggravating factor. In anticipation of that evaluation counsel led evidence from witnesses about the familiarity with machetes gained by Samoan youth from an early age, and about the careful and multi-purpose uses to which a machete was put by Samoan men. The suggestion being conveyed (counsel did not make submissions to explain how the evidence was relevant) was that for a Samoan man to pick up a machete as a weapon did not carry the same implications as it might for a person of another culture. The judge, however, was entitled to conclude that such an object, if chosen to be used as a weapon by an angry aggressor intent of causing serious injury, had an exceptional capacity to cause very severe injury.

The observation that there was a disturbing prevalence of use of such items as weapons highlighted a matter which is notorious within the criminal justice system and was therefore open to be made by the judge without being the subject of evidence. In my view, it was not an observation about which counsel needed to be forewarned, in particular because the use made of the factor by the judge was quite limited in scope. The judge did not suggest that use of machetes as a weapon was prevalent among Samoans. His Honour was, however, entitled by way of addressing the need for general deterrence, to warn anyone minded to use such weapons, whatever their cultural background and experience with machetes, that the courts would discourage such use. In my opinion, that is all the judge was doing, and his approach betrayed no error in principle.

In my opinion this ground has not been made out.

Grounds 3 and 4: The attitude of the victim, and remorse of the offender.

In submissions on penalty before the learned sentencing judge many witnesses were called to give evidence concerning aspects of Western Samoan culture. Particular emphasis was placed on the performance of a ceremony of apology and reconciliation known as an "Ifoga", which was performed in Melbourne at the instigation of a brother of the appellant who travelled from Sydney for the purpose and who was a "matai", i.e. a chief, within the family.

His Honour heard evidence that the Ifoga is a very significant cultural act for Samoan people. The ceremony took place at Tofa's house a couple of months after the assaults had occurred. In the ceremony the appellant was obliged to kneel down and lower himself in front of the victim and to place over his head a finely woven mat and to remain in that position until the victim decided whether or not he would forgive the offender. The appellant, as was the custom, attended with gifts of food, so that if the Ifoga was accepted by the victim the ceremony would be supplemented by a gathering of reconciliation between the parties to the dispute. The amount of food provided constituted two months groceries for the victim and his family. The victim did accept the apology contained in the Ifoga, and he gave evidence in support of the appellant during submissions on sentence. He told the judge that he did not want the appellant to be imprisoned, that he had forgiven him and that they now had a very good relationship. He said the appellant visited Tofa and the children every week, assisting Tofa and Malacula with their children. He said that the appellant was like a real brother to him.

Mr Priest noted that in his sentencing remarks his Honour said to the appellant "I do not accept that the attitude of the victim can govern the approach to be taken in sentencing you". That statement, he submitted, reflected error in the approach adopted.

Although the terms of ground 3 included a complaint that the judge did not take into account, at all, the forgiveness of the victim towards the appellant, Mr Priest said that the only complaint being pursued was that the judge did not give sufficient weight to that factor. Where that is the basis of complaint (as it is also in ground 4) an appellate court must be cautious to ensure that it intervenes only where the approach adopted by the judge in evaluating the factor discloses sentencing error and that it does not merely substitute its own opinion for that of the judge as to the weight to be given to the factor in question[17].

By s.5(2)(da) of the Sentencing Act 1991 the sentencing judge must have regard to "the personal circumstances of the victim of the offence" and by s.5(2)(db) the judge must have regard to "any injury, loss or damage resulting directly from the offence". Smith, A.J.A. observed in R. v. Skura[18] that:

"It may be said that neither of the above provisions change the long-standing position that it has always been relevant for a sentencer to have regard to the impact on the victim[19]. So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant[20]. But evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting[21]. It may mean that "psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor"[22]. Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation".

The statement of his Honour that the attitude of the victim could not "govern" the sentencing approach was consistent with the principles stated in Skura. In the present case, however, there was good reason why the judge would be cautious in evaluating the weight to be given to the evidence of the victim. In the first place, he was not the only victim of the appellant's crime; the two children also witnessed what must have been a horrifying incident, although there was no evidence of any long lasting adverse effects on the children. Crimes of violence frequently create alarm and distress to people other than the immediate victims, and in assessing the need for general deterrence a sentencing judge must have regard to the impact of crime more broadly than merely upon the immediate victim.

An additional reason for being cautious about the weight to be given to the evidence of the victim related to the nature of Tofa's evidence. One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.

In the present case, the victim was himself in a difficult position among other members of the Samoan community, and his acceptance of the apology might have been motivated by a range of considerations. The evidence he gave was rather remarkable. In evidence in chief he said he blamed himself for the attack because he had failed to attend the barbeque for Toliso. He said that after the attack he had not wanted the police involved at all. Despite the seriousness of his injuries and his permanent scarring he said that he did not have any problems at all. He incorrectly stated that he had lost only a few days work, whereas it later emerged that he had lost weeks of employment.

Mr Priest criticised the prosecutor for having cross-examined Tofa and having not accepted his evidence at face value. I am not surprised that the prosecutor displayed some scepticism about the evidence. To his first question in cross-examination the victim agreed that he had "got what he deserved" and he added that the injuries "didn't hurt at all". Under further questioning he said that he had failed to heed a warning that the appellant was coming to attack him, and that the fact that he was struck from behind, and without warning, demonstrated how the appellant had not intended to kill him, because he was defenceless to a killer blow.

Even allowing for the fact that Tofa was a very large man, whose occupation was that of a security guard at a topless bar, and might be thought to have a greater than average capacity to absorb pain and discomfort, his down-playing of the seriousness of the attack upon him must have been something of a revelation to both the prosecutor and the judge.

The judge had to weigh the victim's evidence in mitigation of the offences but he was obliged to make his own assessment of the gravity of the offences. Although grounds 3 and 4 complained that insufficient weight was given by the judge to the forgiveness of the victim and the remorse of the appellant, both of which were reflected in the conduct of the Ifoga, his Honour, said "I accept the evidence that this ceremony was of great cultural significance. It represented a traditional apology of the most humble and sincere kind." His Honour later said that "I accept that you have expressed genuine contrition and remorse. There has been an end to all hostilities in your family. The Ifoga has the effect of cementing both your apology, its acceptance, and reconciliation in the family." Those statements reflect that his Honour did give weight to the performance of the Ifoga and to factors of remorse and forgiveness.

I am not persuaded that the weight given to these factors by the judge displayed error in his approach. As I will next discuss, it may be thought that, having regard to the seriousness of the offences, the sentences imposed were merciful. That must reflect the fact that factors of remorse and forgiveness were given significant weight, along with all other relevant mitigatory factors. Grounds 3 and 4 are not made out.

Mr Priest submitted that the individual sentences, the extent of cumulation and the non-parole period all constituted manifestly excessive sentences in the circumstances of this case. Counsel pointed to the judge's findings that there was an absence of prior convictions, that the appellant had been a man of previous good character, that the appellant had performed good works within the community, had a very long and unbroken work record, had good prospects of rehabilitation, had shown genuine contrition and remorse, had been provoked by the victim, had made a significant apology to the victim which had been accepted and which had been accepted within the Samoan community as an act of reconciliation and forgiveness. All of those factors ought to have led to a sentence of imprisonment which was wholly suspended, or at least substantially so, he submitted.

For there to have been a suspended sentence the total effective sentence could not have exceeded three years[23]. Mr Priest submitted that no greater sentence was appropriate in this case. He contended that the sentence on count 2 ought not to have exceeded three years, and more appropriately should not have exceeded two years and six months. However, even if a sentence of three years was deemed appropriate on count 2 then the sentence on count 1 ought to have been ordered to be served wholly concurrently, thereby ensuring that a total effective sentence above three years was not imposed.

It was submitted that the judge gave too much weight to general deterrence, having regard to the unusual cultural factors which applied in this case. His Honour, however, gave weight to cultural aspects raised in the plea hearing. He accepted that there were "peculiar cultural issues" which affected the appellant; ´ in particular, his Honour held that the relationship of his sister with the victim had caused great distress and embarrassment for the appellant. His Honour accepted, too, that the appellant had been provoked in the phone conversation by words which were of an "extremely provocative nature". His Honour accepted that subsequent to the events the appellant had effected "a complete apology and reconciliation".

Although those cultural factors were of importance, the judge was right, in my opinion, to conclude, as he did, that general deterrence remained of considerable importance in such a case. The long term provocative conduct and the immediate provocative language of the victim undoubtedly triggered the violent response of the appellant, who otherwise had an unblemished character, but violent conduct is very often triggered by inflammatory words and conduct of a victim. While it was important to understand why the appellant acted as he did, there remained a need to deter people both within the Samoan community and also the broader community from responding with such violence, however great the provocation. I do not consider that the judge gave undue weight to general deterrence.

In structuring his sentence his Honour expressly said:

"I have sought to impose what I regard as moderate sentences in the circumstances, and I have ordered some degree of cumulation to take account of the fact that there are separate offences. You entered the victim's home with a machete and then attacked him,"

Although Mr Priest submitted otherwise, it is my view that the aggravated burglary, albeit an essential prelude to the assault which took place, was a quite discrete offence and merited some degree of cumulation. Had the victim not been present in the house the manner of the appellant's entry and the intention which accompanied it might nonetheless have merited a sentence of immediate imprisonment. Thus, the approach adopted by the judge of moderating the two sentences then imposing a degree of cumulation was not only consistent with principle[24], but was entirely appropriate to the circumstances of this case.

Having regard to the fact that the maximum sentence for aggravated burglary is 25 years imprisonment it is plain that the sentence of two years' imprisonment imposed here was merciful, and once it is accepted that it was open to the judge to order that portion of that sentence be served cumulatively, the actual order of six months cumulation is, again, lenient. I turn then to the question whether the sentence of three years and six months' imprisonment, which was imposed on count 2, was outside the range available to the judge in the exercise of his discretion.

Once the sentence and order of cumulation with respect to count 1 is seen not to constitute sentencing error then if a suspended sentence was to be imposed the sentence on count 2 must have been no more than two and a half years' imprisonment. In my opinion, however, and notwithstanding the many mitigatory factors in this case (all of which the judge took into account), it can not be said that the sentence of three years and six months' imprisonment which the judge imposed for that offence was manifestly excessive, let alone that a sentence of not more than two years and six months ought to have been imposed.

It is simply not arguable, in my view, that the total effective sentence was outside the range reasonably available to the judge for such serious instances of the offences before the court.

In the event that we rejected the contention that the total effective sentence imposed was manifestly excessive, the next contention on behalf of the appellant was that the non-parole period which was fixed was itself manifestly excessive. I reject that contention. In my opinion, a non-parole period of two years under a head sentence of four years is unusually low, and reflects the fact that the judge in this case must have given substantial weight to the mitigatory factors, especially to the aspect of remorse and prospects of rehabilitation, to which Mr Priest directed attention.

I conclude, therefore, that the appeal should be dismissed.

[1] Director of Public Prosecutions v. Zullo [2004] VSCA 153; Director of Public Prosecutions v. Lawrence [2004] VSCA 154 and R. v. Huynh [2004] VSCA 156.

[2] The penalty was increased to 20 years' imprisonment by s.60 of the Sentencing and Other Acts (Amendment) Act 1997, which came into force on 1st September 1997.

[3] As to the power of the Court of Appeal to rescind leave, see Coles Myer Ltd. v. Bowman [1995] VICSC 219; [1996] 1 V.R. 457 at 460; Ermogenous v. Greek Orthodox Community of S.A. Inc. (2001) 209 C.L.R. 95 at 112 [46] and R. v. GAM (No. 2) [2004] VSCA 117 at [46].

[4] We can say that as a court of three judges: compare R. v. Mai [2000] VSCA 184 at [21].

[5] Attorney-General v. Tichy (1982) 30 S.A.S.R. 84 at 93 per Wells, J.

[13] The change took effect from 1 September 1997, by virtue of s.60(1) (Schedule 1(10)) of Act No. 48 of 1997).

[16] [1998] 2 V.R. 517, at 523, per Callaway, J.A., with whom Phillips, C.J. and Batt, J.A. agreed.

[17] See R. v. Bernath [1997] 1 V.R. 271, at 277, per Callaway, J.A, with whom Winneke, P. and Brooking, J.A. agreed.

[18] [2004] VSCA 53, at [47]-[48], see too Buchanan, J.A. at [2], and Eames, J.A., at [12]-[13].

[19] R. v. Mallinder (1986) 23 A. Crim.R. 179, at 183; R. v. Webb [1971] VicRp 16; [1971] V.R. 147, at 150.

[20] R. v. Pritchard (1973) 57 Cr.App.R. 492, at 494.

[21] R. v. Marasovic, unreported Court of Criminal Appeal, 16 February 1982.

[22] R. v. Hutchinson (1994) Cr.App.R. (S) 134, at 137.

[24] See R. v. Izzard [2003] VSCA 152; (2003) 7 V.R. 480 at [20]- [23] per Callaway, J.A., with whom Winneke, P. and Vincent, J.A. agreed; see, too, R. v. McCorriston [2000] VSCA 2000, at [13].

At a glance

Court

Decision date

Before

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Judgment (84 paragraphs)

Parties