Ranger v The Queen [2017] VSCA 191

Court of Appeal (Vic)|2017-07-20|Before: Santamaria JA

DPP v Ranger (Unreported, County Court of Victoria, Judge Punshon, 27 March 2017)

CRIMINAL LAW - Application for leave to appeal against sentence - One charge of intentionally causing serious injury - One charge of knowingly possessing child pornography - Sentence of 9 years' imprisonment with non-parole period of 6 years and 3 months - Whether sentence manifestly excessive - Effect of current sentencing practices on sentence - DPP (Cth) v Brown [2017] VSCA 162 , , , considered - Leave to appeal refused.

1 The applicant, now aged 25, pleaded guilty to one charge of intentionally causing serious injury and one charge of knowingly possessing child pornography.

2 The applicant was sentenced in the County Court as follows:

Intentionally cause serious injury [Crimes Act 1958

Knowingly possessing child pornography [Crimes Act 1958 s 70(1)]

12 years' imprisonment with a non-parole period of 8 years and 6 months' imprisonment

• With respect to charge 2, declared to be a registrable offender under the Sex Offenders Registration Act 2004 with obligations to report for 8 years.

3 The applicant now seeks leave to appeal his sentence.

4 The applicant and the victim, a five-year-old girl, lived in different units within a block of apartments. On the afternoon of 22 November 2015, the victim was playing outside her unit, where she then lived with her mother and older sister. The applicant gestured to the victim to come to where he was, outside his unit. She walked over to him, and he cuddled her and led her into his unit. Once inside, the applicant obtained a pocket knife, sat on the victim and stabbed her repeatedly. He also removed her t-shirt, touched her chest and groin and removed her shoes. He attempted to remove her shorts, but was unable to do so because she had her legs closed. The stabbing continued. In the struggle, the victim was able to bite the applicant on the lip, causing him to drop the knife. She was able to escape and flee to her mother. She was distressed and covered in blood. An ambulance and police were called. The victim was taken to hospital with serious and potentially life-threatening injuries.

5 The victim had lacerations over her face, scalp, chest, back and abdomen, with a fold of intra-abdominal fat protruding through one abdominal wound. She was given an exploratory laparoscopy, and her incisions and puncture wounds were repaired and sutured. She remained in hospital until 27 November 2015.

6 The victim suffered five incisions to the chest, six incisions to the abdomen, ten incisions to the head and neck and four incisions to the back: a total of 25 incisions. All incisions or puncture wounds were clean-edged and made by a stabbing or slashing motion.

7 During an interview with police, the applicant said that the victim had walked into his unit, and he told her to leave. He said that she picked up a knife on the coffee table and that she became injured as he was trying to get it off her and get her out of his unit. The sentencing judge observed that this account was 'obviously inconsistent' with the applicant's plea of guilty to charge 1 and the agreed summary of facts.[1]

8 Police seized the applicant's mobile phone. Two images of 'category 1' child pornography were located amongst another 154 images of adult pornography.[2]

9 The applicant was 23 at the time of the offending. He has four siblings, all of whom are supportive of him.

10 At the age of five, the applicant's parents became separated. He had no relationship with his father until the age of 17, when they reconnected. At the age of 14, he moved with his mother to Christmas Island. At the age of 19, he moved to Perth to live with his father briefly before returning to Christmas Island to live with a friend of his mother's. The applicant completed Year 12 in mainstream schooling on Christmas Island.

11 The applicant has suffered from cerebral palsy from birth due to umbilical cord asphyxia, and he requires assistance to perform many physical daily tasks. He has no mental disability and, although his condition produces uncontrolled movements, he is capable of 'concentrated control actions'.

12 In his sentencing remarks, the sentencing judge took into account the applicant's early plea of guilty.[3] It saved time, expense and the need for witnesses, including the victim and those close to her, to give evidence.[4] However, given that the applicant did not accept as true the plea to charge 1 and the agreed facts upon which it is based, the sentencing judge was concerned about the degree of his remorse.[5]

13 The sentencing judge accepted the distinction drawn by counsel for the applicant between the superficial nature of the injuries suffered by the victim and the 'many cases of intentionally causing serious injury where the physical and psychological injuries suffered by the victim may be far more serious';[6] however, the judge said that, by his plea of guilty, the applicant accepted the serious nature of the physical and psychological injuries inflicted on the victim. The judge also took into account that it was the applicant's intention to cause serious injury to a five-year-old child and that the knife wounds themselves were potentially life-threatening.[7]

14 During the plea, counsel for the applicant submitted that the applicant's offending should be seen as opportunistic rather than pre-planned.[8] The judge observed that there was no satisfactory explanation for the attack. He noted that, even allowing for the apparent history of alcohol abuse and the possibility that the applicant had been drinking on the day of the attack (although there was no clear evidence to that effect), intoxication alone did not sufficiently explain the offending.[9]

15 The sentencing judge noted, based on the evidence, the 'sexual component' to the attack: the applicant touched the victim's chest and groin and tried to remove her shorts. The judge accepted that no inference as to motive could be drawn from the presence of the two images of child pornography on his phone, given that (a) they were amongst many more images of adult pornography, (b) they were downloaded months before the attack and (c) there was no evidence of when he last had access to the two images.[10]

16 The sentencing judge turned to the applicant's physical and mental disabilities. A report from Associate Professor Michael Fahey, paediatric neurologist and clinical geneticist, provided that the applicant's condition significantly reduces his capacity to engage in many physical activities; he cannot write, cannot talk to others easily and struggles to be understood.[11] He also requires support for many daily tasks, such as bathing and hygiene, and has difficulty eating. He falls regularly; in the past, he has been determined to walk without aids, but he is currently using an electric wheelchair.[12]

17 Mr Fahey suggests that the applicant requires access to rehabilitative programs, including strength and endurance therapy, as well as therapy to aid his communication. Mr Fahey said that, without therapy, there was a risk that the applicant will physically worsen while in prison, and his chances of employment on release from prison will be detrimentally affected.[13]

18 The applicant also reported a history of alcohol abuse.[14] He went through periods of unstable housing, residing in hotels or homeless centres. Before the offending, he received services through disability services. Before prison, he had been undertaking an Advanced Diploma in Building. In prison, he completed a substance use program.[15]

19 According to the applicant, prison was affecting his mood, and he was suicidal at times. A Forensicare report noted that he still had occasional suicidal thoughts and, some time ago, before treatment in prison, he had been thinking of hanging or strangling himself. The applicant had said that, on two occasions while on remand, he had attempted self-harm.[16]

20 A report prepared by Mr Gary McMullin, a psychologist, found that the applicant was of average intelligence, and there was no evidence of any brain dysfunction beyond the cerebral palsy. According to Mr McMullin, the applicant met the criteria for (a) post-traumatic stress disorder ('PTSD'), suffering from severe chronic PTSD, (b) 'Major Depressive Disorder with Anxious Distress', his scores being indicative of 'Severe Depression', 'Extremely Severe Anxiety' and 'Severe Stress', and (c) 'Alcohol Use Disorder in Early Remission, In a Controlled Environment'. In summary, Mr McMullin considered that the applicant's physical disabilities and mental disorders made incarceration more onerous for him than would otherwise be the case for a prisoner without these difficulties.[17]

21 On his arrival at prison, the applicant was assessed as a maximum security risk and classified to Port Phillip Prison. He was soon transferred to St Paul's Psycho-Social Hospital Unit at Port Phillip, where he remained until the time of his transfer to Marlborough Disability Unit at Port Phillip in June 2016.[18]

22 As set out in an affidavit from Mr Brendan Money, Assistant Commissioner in the Sentence Management Division of Corrections Victoria, the applicant struggles with many activities in prison. He requires assistance with showering, dressing and his personal care needs, and he has been allocated a 'prison mentor' who assists him generally. He has physical aids, including a personal electric wheelchair and disability spoons and forks. His capacity to work in prison is restricted, but he will have access to a variety of programmes and activities.[19]

23 The sentencing judge received two supportive character references. One was from a disabled girl who had befriended the applicant during his time on Christmas Island. The other was from a person involved in Prison Fellowship Victoria. The judge noted that the applicant is separated from his family in Western Australia, and his relatives in Melbourne are unable to visit because they are too young. He is currently housed mainly with intellectually disabled prisoners, making communication even more difficult.[20]

24 A report prepared by Dr Carolyn Simms, a consultant psychiatrist at the Victorian Institute of Forensic Mental Health, provided that:

(a) the applicant told Dr Simms that the injuries occurred to the victim accidentally when he was trying to get the knife off her.

(b) Dr Simms thought it likely that the applicant was suffering from a major depressive disorder, which had responded to antidepressants and psychological treatment, but that he still experienced intermittent suicidal ideation;

(d) there was no evidence of bipolar effective disorder or psychotic disorder;

(e) it was likely that the applicant was under the influence of alcohol at the time of the offending, and this would have affected his ability to make calm and reasonable decisions, leading to some degree of disinhibition;

(f) the applicant expressed sorrow for the victim and her family; and

(g) the applicant is likely to find prison more onerous than others given his physical and psychological difficulties, and he would benefit from treatment and medication, drug and alcohol counselling and assistance for his physical disabilities.[21]

25 The sentencing judge considered that the applicant was at risk of both mental and physical decline from spending time in prison.[22] The judge accepted that (a) it was likely that the problems with the applicant's mental state developed or, at least, worsened after incarceration,[23] (b) the applicant's condition makes him vulnerable in prison and is a considerable additional burden on his serving a sentence of imprisonment[24] and (c) the first period of imprisonment that he had served in St Paul's Psycho-Social Hospital Unit 'would have been very difficult', and some services have only been provided to him relatively recently.[25] The judge noted that the applicant could expect to receive such support that the prison authorities consider appropriate.[26] The sentencing judge also noted the applicant's intention, when released from prison, to pursue his studies and a personal relationship.[27]

26 However, the sentencing judge was sceptical of the applicant's prospects of rehabilitation. He said:

In my view, I cannot conclude that I have much confidence in your rehabilitative potential without further evidence to explain why the offending occurred. Without that explanation, it is not possible to conclude that the cause of the offending is being addressed.

Specific and general deterrence need to be considered, as does denunciation and just punishment. I am conscious of your relative youth, both at the time of the offending and now, as well as the absence of prior offending and previous good character. Of course, your rehabilitation is highly desirable. I must give considerable weight to your cerebral palsy and its consequences. However, your offending is very serious, and protection of the community remains very relevant.[28]

27 The applicant seeks leave to appeal his sentence on the following proposed ground:

The [sentencing judge] erred in his sentencing discretion by imposing a sentence and a non-parole period which were manifestly excessive.

PARTICULARS

(a) Insufficient weight was given to:

(i) the applicant's plea of guilty;

(ii) the applicant's youthfulness;

(iii) the applicant's previous good character and lack of prior criminal history;

(iv) the applicant's adverse personal history;

(v) the applicant's disabilities and the consequent burden of imprisonment upon him;

(vi) the applicant's prospects of rehabilitation; and

(b) excessive weight was given to:

(vii) aggravating factors;

(viii) community protection.

28 The applicant contends that the applicant's sentence was wholly outside the range of dispositions reasonably available in the circumstances of the case. The applicant concedes that the sentencing judge referred to all relevant matters in his sentencing remarks, but submits that the sentence imposed confirms error in the exercise of discretion. The applicant says that, having regard to current sentencing practices for the offence of intentionally causing serious injury, the sentence of nine years' imprisonment is 'very severe' on a plea of guilty and falls within the sentencing range for the 'worst category' cases of the offence.[29] According to the applicant, the present case did not contain features which would be expected in a case in which such a sentence was imposed. Moreover, he was a youthful first offender and had lived his whole life with a profound physical disability, and he would be amongst the most severely disabled and dependent prisoners in Victoria.

29 The applicant further contends that the sentencing judge was required to take into account current sentencing practices for the offence of intentionally causing serious injury. He notes the review of sentencing practices for the offence of intentionally causing serious injury in Nash v The Queen[30] and says that only one of the 37 cases considered by the Court in Nash involved a longer sentence than that imposed on the applicant. He also points to what he perceives to be an excessive sentence in the sentencing judge's statement under s 6AAA of the Sentencing Act 1991.

30 The applicant also contends that his sentence was wholly beyond the sentencing range that was appropriate by reference to comparator cases and the degree of injury inflicted on the victim.[31]

31 Moreover, the applicant says, his physical disability was a mitigating factor of exceptional importance. The applicant set out at length the circumstances which he considered to be 'genuinely exceptional', noting that it is extremely difficult to identify an appellate case in which a similar form and degree of physical disability was present.

32 Finally, the applicant contends that, while taking into account the mitigating factors relied upon by the applicant on the plea, the sentencing judge 'expressed a more guarded view of the applicant's prospects of rehabilitation than had been urged by counsel'. The applicant submits that the sentence imposed is so disproportionate to the findings made as to indicate that the mitigating factors were given insufficient weight. The applicant also submits that, in view of his lack of prior criminal history, disability and reliance on government or welfare agencies for accommodation, too much weight was given to community protection.

33 In DPP (Cth) v Brown,[32] this Court said:

Given the discretionary nature of sentencing, the grounds of manifest excess and manifest inadequacy are difficult to establish. In Karazisis, Ashley, Redlich and Weinberg JJA said:

As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

Sentencing is a discretionary power confided to the sentencing judge and reasonable minds will differ as to what is the appropriate sentence in a particular case. There is no 'correct' sentence. Consideration of current sentencing practices assists in promoting consistency of approach. But sentences in other cases of the same offence are not precedents. Where those sentences can be seen to fall within a range, that range informs, but cannot determine, the appropriate sentence in a particular case.

Fairness demands that there should be reasonable consistency in sentencing. Further, in the absence of such reasonable consistency, the administration of justice is brought into disrepute. It is for the Court to determine what sentences should be considered in order to satisfy the norm of reasonable consistency. In practice, a court is assisted in fulfilling this obligation when the parties bring to the court's attention cases which are said to be comparable to the case in hand. Usually, this is done by the preparation of tables of comparable cases. The utility of such tables will depend on how informative they are. Bare sentencing statistics may suggest a range in respect of sentences for a particular offence. But such statistics will not reveal the circumstances peculiar to a particular case.

Sentencing requires consideration of comparable cases: 'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.' In Pham, the High Court identified the twofold purpose in the use of comparable cases:

(a) they 'provide guidance as to the identification and application of relevant sentencing principles'; and

(b) analysis of them 'may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence'.

In Nguyen v The Queen, Redlich JA (with whom Tate and Whelan JJA agreed) said:

These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.

...

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.[33]

34 Four recent cases which involved a charge of intentionally causing serious injury serve as a comparison to the sentence imposed on the applicant. It is worth noting that this Court's decision in Nash has been described as '[t]he starting point in terms of assessing current sentencing practice for this offence'.[34]

35 In Nash, the offender pleaded guilty to a charge of intentionally causing serious injury, together with summary offences of driving a motor vehicle while disqualified and using a drug of dependence. The main charge arose from an attack on the mother of the offender's girlfriend in which he kicked her in the face and punched her repeatedly, causing serious permanent impairment to her hearing. The offender was sentenced to seven years' imprisonment on the charge of intentionally causing serious injury and to a total effective sentence of seven years and six months' imprisonment with a non-parole period of five years and six months. He appealed on the ground that the individual sentences, total effective sentence and non-parole period are manifestly excessive.

36 The Court dismissed the appeal. Priest JA (with whom Maxwell P and Coghlan JJA agreed) held that the attack was a 'very serious instance' of intentionally causing serious injury;[35] it was 'vicious and cruel'.[36] The injuries that were inflicted on the victim, and the long term consequences for the victim, were 'severe and permanent'.[37] The offence was particularly serious in view of it having been committed on a frail woman.[38] In the circumstances, the sentence imposed was not excessive, but proper.[39] Annexed to the judgment was a table containing recent decisions of the Court of Appeal relating to appeals against sentence for intentionally causing serious injury.[40] In this regard, Maxwell P observed that the following matters were routinely taken into account by sentencing judges in assessing the gravity of particular instances of intentionally causing serious injury:

(a) the offender's proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?

(b) the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);

(f) whether the offender acted alone or in company.[41]

The development of such a list of indicia should be conducive to consistency in sentencing and - hence - to public confidence in the criminal justice system. When one case was said to be more or less serious than another, it would be apparent on the face of the sentencing reasons why that was so. Enabling sentencing judges to provide a clearer explanation of how the seriousness of a particular offence has been assessed should reduce the scope for perceptions of inconsistent treatment as between one case and another and - hence - remove one of the main sources of sentence appeals.[42]

38 In Tasevski v The Queen,[43] the offender pleaded guilty to one charge of intentionally causing serious injury and one charge of intentionally causing injury, contrary to ss 16 and 18 of the Crimes Act 1958 (Vic), respectively. The first offence arose out of an altercation at a shopping centre where the offender, using a knife, stabbed the victim once to his left back chest area. At the time of the second offence, the offender had been on intensive supervised bail arising from the first offence. He was sitting at a table outside a café in the company of three women. The victim, a total stranger to the offender, walked past wheeling his bicycle. After a brief verbal altercation between the victim and one of the offender's companions, the offender pulled out a knife, ran towards the victim and stabbed him in the right side of the stomach. The offender was sentenced to nine years' imprisonment with a non-parole period of seven years. Notably, he was sentenced to seven years and six months' imprisonment on the second charge. Among other grounds, he sought leave to appeal on the ground that the individual sentences, the total effective sentence and the non-parole period imposed were manifestly excessive.

39 Tate JA considered the sentence imposed on the second charge, namely intentionally causing serious injury, to be manifestly excessive. She said:

It is not to be denied that the protection of the community was an important sentencing consideration here, as was the need for specific and general deterrence. The intentional infliction of serious injury on a stranger in a public place by an offender with a history of violent offending requires appropriate denunciation. The judge was correct to describe the offending as a serious example of the offence. However, I consider that the sentence of seven years and six months imposed here by the sentencing judge with respect to the [intentionally causing serious injury] charge to be inconsistent with current sentencing practice and to fail properly to reflect the circumstances in mitigation, including [the offender's] early plea of guilty, his family history, including his early feelings of abandonment and the violence and abuse he suffered at the hands of his father, the fact that he will serve his custodial sentence in protection, and, importantly, that he did not stand to be sentenced as a serious violent offender.[44]

Tate JA reached the same conclusion with respect to the first charge of intentionally causing injury. While accepting that the offending was a 'serious example' of this type of offence, she held that 'the objective circumstances of the offending did not warrant a sentence that fell outside current sentencing practice'.[45] In the event, Tate JA allowed the appeal and resentenced the offender to 7 years and 6 months' imprisonment with a non-parole period of 5 years and 6 months.

40 Nettle JA recognised the force of Tate JA's conclusion that, judged by reference to the relevant authorities, the sentence of seven and a half years' imprisonment imposed on the second charge 'is stern and, statistically speaking, remarkable.'[46] However, he was not persuaded that it was manifestly excessive. He said:

The maximum penalty for intentionally causing serious injury is 20 years' imprisonment and, as has been observed on other occasions, it may thus be expected that the worst instances of the offence will attract sentences of 15 years' imprisonment and upwards. The offence of causing serious injury in this case was not among the worst instances of the offence but, as the sentencing judge rightly found, it was serious. Hence, the sentence which his Honour imposed was only half of 15 years.

Certainly, as Tate JA observes, there are other cases in which similar attacks have netted lesser sentences. High authority dictates that we must regard them as relevant comparators. But the complexities of sentencing are not susceptible to precise mathematical comparisons. They necessitate consideration not only of the nature and gravity of an offence and the injury which it may have inflicted but also of the nature and circumstances of the offender, his prospects of rehabilitation and the needs of community protection. Potentially, therefore, the variables are unlimited and, to a large extent, of a nature incapable of any more precise measurement than informed subjective assessment.

Therein lies the essence of the sentencing discretion and why it is that there is:

no one necessarily correct sentence for a given offence or offender; only a range of sentences above or below which it is error of law to go.

No doubt, some other judges might have assessed things differently and indeed it may be that the majority are likely to have resolved upon a sentence less than was imposed. But to say so is not to conclude that the sentence was manifestly excessive. It is merely to recognise that, within the permitted range of sentencing discretion, views may reasonably differ. I do not accept that a sentence of seven and a half years for a knife attack of the kind in issue lies beyond that range.

More precisely, given that this was an unprovoked knife attack on an innocent stranger, lawfully going about his business in a public place, which caused him life threatening physical injuries and thus far unresolved traumatic psychological sequelae, committed by the applicant while released on bail pending trial for another albeit less serious knife attack on another victim only seven months before, I am unable to conceive of a sentence of seven and half years' imprisonment as manifestly beyond the bounds of just punishment.

The sentence of three and half years' imprisonment imposed on the charge of intentionally causing injury which was constituted of the earlier stabbing (charge 1) is in my view unremarkable and, as was properly conceded, the order for cumulation of 18 months of that sentence on the sentence imposed on charge 2 is unexceptionable.

I would dismiss the application.[47]

41 Beach JA granted leave to appeal but, for the reasons given by Nettle JA, he was not persuaded that the sentence imposed on the second charge was manifestly excessive and that the total effective sentence or the non-parole period were outside the permissible range.[48]

42 In Webster v The Queen,[49] the offender pleaded guilty to one charge of intentionally causing serious injury. The offender and the victim (aged 70) got into a verbal altercation on a golf course after the offender had accused the victim's brother of staring at him. The offender swung a fallen tree branch at the victim, part of it hitting the victim on his left shoulder. The victim took a golf club and chased the offender from the fairway, throwing the club and hitting the offender on the legs. Later, the offender armed himself with a golf club (an iron) and ran at the victim, brandishing the golf club and threatening to kill him. The victim had prepared to defend himself with his putter when the offender struck the victim to the left side of his head with the golf club, knocking him to the ground. The victim suffered serious head injuries. The offender was sentenced to seven years' imprisonment with a non-parole period of five years and six months. He had applied for leave to appeal on the ground that the sentence was manifestly excessive. A single judge granted leave to appeal.

43 Redlich JA and Beale AJA dismissed the appeal. They first considered the gravity of the offending and said:

No challenge was made to the sentencing judge's finding that this was a serious example of the offence of intentionally causing serious injury. Having regard to the circumstances in which this offence occurred, the use of a potentially lethal weapon to strike an elderly man forcefully to the head, the seriousness of the physical injuries suffered by the victim, and the profound impact it has had on his life, it was an upper range example of the offence of intentionally causing serious injury.

The absence of some aggravating features referred to in [Nash v The Queen] means this offence is appropriately viewed at the low end of the upper range, but the point should be made that it is not necessary for the injuries inflicted to be catastrophic or for the assault to be prolonged or for the offence to occur 'in company' in order for such an offence to fall into the upper range of seriousness.

At first blush, a head sentence of seven years for an upper range example of the offence, committed by an offender in his late 30's with priors for violence, and 'guarded' prospects of rehabilitation, does not suggest manifest excess, even if one accepts, as the sentencing judge did, that the appellant entered an early plea of guilty. The head sentence is not much more than a third of the maximum sentence of 20 years' imprisonment.[50]

44 Redlich JA and Beale AJA then turned to current sentencing practices for intentionally causing serious injury. Having considered comparable cases, they said:

We have read carefully all of the cases relied upon by the appellant. Our conclusion is that while the sentence imposed on the applicant was a stern one, it was not outside the range of sentences open to the sentencing judge for what was a serious example of the offence of intentionally causing serious injury.[51]

45 They also compared the case before them to Tasevski v The Queen:

Nothing much turns on the fact that a knife was the weapon of choice in Tasevski whereas here, the weapon was a golf club. Smashing the head of a golf club into someone's head is no less serious, or fraught, than stabbing someone in the stomach with a knife. Indeed, a victim given the unhappy choice, might well choose the latter. Of course, there are factual differences between Tasevski and the present case. For example, an aggravating feature in Tasevski was that the offence was committed when the offender was on bail for intentionally causing injury in another knife attack. But, then again, the victim in Tasevski was 28, not 70.[52]

46 In May-Jordan v The Queen,[53] the offender pleaded guilty to charges of intentionally causing serious injury and theft, both of which were committed when the offender was on bail. The first charge arose out of an incident at a restaurant. The offender (then aged 18) stabbed the victim (then aged 16) in the arm, severing an artery and causing massive blood loss and nerve damage. He was sentenced to three years and 10 months' imprisonment on the charge of intentionally causing serious injury.[54] The offender applied for leave to appeal on the ground that the sentence imposed was manifestly excessive.

47 Weinberg and Ferguson JJA dismissed the application for leave to appeal. They addressed at length the offender's submission that, given his youth and the surrounding circumstances, a term of imprisonment coupled with a community correction order was the most appropriate disposition of the charges. In leaving the sentence undisturbed, Weinberg and Ferguson JJA emphasised the importance of general deterrence and rejected the offender's submissions that the sentencing judge downplayed the offender's age and background, which entailed a difficult childhood and chronic anxiety.[55]

48 In order to establish the proposed ground of manifest excess, the applicant must establish that the sentence imposed is wholly outside the range of sentencing options available.[56] He will need to be able to demonstrate that something has gone obviously, plainly or badly wrong.[57] Manifest excess is a stringent ground which is difficult to make good.[58] In McPhee v The Queen,[59] Redlich and Priest JJA said:

Every single human situation is unique, and the sentencing judge's instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences ... In order for an argument of manifest excess to be successful, the excess must be 'obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error'.[60]

49 In the present case, the proposed grounds of appeal seek to particularise the ground of manifest excess by identifying certain considerations to which the sentencing judge either gave too little (the plea of guilty; the applicant's youth etc.) or too much weight (aggravating factors and community protection). The particulars do not seem to be intended to suggest specific error; rather, they appear to be offered as matters that, had they been properly considered, would not have resulted in a sentence that was outside the range of what was reasonable.

50 I do not agree. The present assault on a very young child was horrid and must have been terrifying. As the Crown has submitted, the assault was 'brutal and nasty'; it was 'upon an essentially defenceless child'; it was 'entirely unprovoked and gratuitous'. Given the use of a potentially lethal weapon, the assault could readily have resulted in the death of the victim. Specific deterrence and protection of the community were plainly relevant. General deterrence and denunciation were also significant. In my opinion, the sentence was not outside the range of sentences that were reasonably available.

51 The application for leave to appeal against sentence should be refused.

[1] DPP v Ranger (Unreported, County Court of Victoria, Judge Punshon, 27 March 2017) [12] ('Sentencing remarks').

[2] The presence of those two images on the applicant's phone formed the factual basis of charge 2.

[3] Sentencing remarks [16]. The applicant was originally charged with attempted murder, but this matter had been resolved.

[29] The applicant referred to Kilic v The Queen [2015] VSCA 331 and noted the High Court's disapproval of references to the 'worst category' in R v Kilic [2016] HCA 48; (2016) 339 ALR 229.

[31] The applicant acknowledged that, given his disability, there was a paucity in comparator cases. However, he pointed to the two cases of intentionally causing serious injury to a child relied upon by the prosecution at the plea, R v Staples [2005] VSCA 130 and R v Pham [2005] VSCA 57, and observed that the sentence imposed in the present case was 'significantly higher' than that imposed in those cases.

[33] Ibid [55]-[59] (emphasis added, citations omitted).

[34] See DPP v Weber [2017] VSCA 93 (Weinberg, Priest and Kyrou JJA).

[35] Nash (2013) 40 VR 134, 139 [18].

[40] Ibid 136 [6]. The table is based on the decisions of the Court of Appeal over the period 2011-2013 on appeals against sentence for intentionally causing serious injury. The decisions are collected and summarised in the Victorian Sentencing Manual published by the Judicial College of Victoria.

[45] In this regard, Tate JA earlier in her judgment had referred to Sentencing Advisory Council, 'Causing serious injury intentionally' (Sentencing Snapshot No 125, June 2012) figure 7.

[46] Tasevski v The Queen [2014] VSCA 135 [2].

[54] Ibid [2]. The offender had been sentenced to seven days' imprisonment on the charge of theft.

[56] R v Boaza [1999] VSCA 126 [42].

[57] Binse v The Queen [2016] VSCA 145 [57].

[58] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127].

[60] Ibid [8], citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing).

Offenders Registration Act 2004

At a glance

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Before

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Judgment (101 paragraphs)

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Legislation Cited (1)

Cases Cited (3)