Raveche v The Queen [2015] VSCA 99

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 19 June 2014 the appellant (now aged 25) pleaded guilty to one charge of affray and one charge of recklessly causing serious injury. Following a plea on 19 and 24 June 2014, he was sentenced on 27 June 2014 as follows:

Recklessly causing serious injury [Crimes Act 1958 s 17]

2 On 30 October 2014, Priest JA granted the appellant leave to appeal against sentence on the following ground:

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

3 Priest JA refused the appellant leave to appeal on a separate ground, namely, that the sentencing judge erred by failing to correctly apply the principles regarding the relevance of prior convictions to the exercise of the sentencing discretion. The appellant has not elected to renew that ground of appeal.

4 For reasons that follow, the appeal will be dismissed.

5 In the early morning of 3 March 2013, when he was 23 years old, the appellant left a restaurant in the Melbourne CBD with friends, including Paul Sergides and Frank Ropata, having attended a nightclub earlier that night. The appellant and his friends each consumed approximately 30 standard drinks. Having decided to go home, the appellant entered a vehicle driven by his partner, Kristina Sergides, along with Ms Sergides's brother, Paul Sergides.

6 While the appellant and Mr Sergides were in the car, Mr Ropata walked up behind another man, Louis Ting, and punched him at least three times to the back of the head causing him to fall to the ground. Having noticed the incident, the appellant and Mr Sergides rushed from the car to help Mr Ropata.

7 Mark Ambrose, a friend of Mr Ting, went to his assistance and was knocked down. It is not clear who knocked him down. While he was on the ground, the appellant kicked him in the torso and then stomped on his head causing him to lose consciousness. The appellant and his co-offenders then left the area.

8 Mr Ambrose sustained a fractured skull and intracranial injuries and was hospitalised for four days.

9 The appellant was arrested on 4 April 2013. During his interview, the appellant made the following admissions:

(a) he had been drinking throughout the evening and became drunk;

(c) he had entered the fight to help Mr Ropata;

(d) he had kicked Mr Ambrose in the torso while he was on the ground; and

(e) when Mr Ambrose looked up at him, he kicked Mr Ambrose in the head 'like a stomp' causing a loud thump when his head hit the pavement.

10 The appellant's admissions assisted in identifying who had kicked Mr Ambrose in the head, as this was not entirely clear from the CCTV footage of the incident and the witness statements reflected the brevity and confusion of the incident.

11 Dr Peter Dowling, a clinical neuropsychologist, saw Mr Ambrose on two occasions in November 2013. In his report dated 5 December 2013, Dr Dowling identified a number of persisting acquired cognitive limitations from Mr Ambrose's brain injury. They included limitations in: attention to visual detail, non-verbal reasoning, non-verbal memory, non-verbal executive processes (for example problem solving, organisation error utilisation), higher level verbal expression, verbal problem solving, verbal memory, verbal learning, higher level attentional skills and speed of information processing. Dr Dowling noted that natural recovery could occur for two years post-injury and that there were fairly good prospects for further recovery or improvement 'for the next year or so'.

12 Mr Ambrose's Victim Impact Statement, which was read out and tendered during the hearing of the plea, stated that, since his injury, Mr Ambrose was unable to express himself emotionally, kept to himself, was less trusting towards people and was experiencing a loss of enjoyment in life and difficulties in his relationship with his partner. Mr Ambrose also stated that, immediately after the injury, he was unable to sleep because of constant migraines and pain and that he experienced weight loss and a loss of appetite. He also stated that sleeping continued to be difficult because he had consistent head spins and that he would frequently wake up with headaches. Mr Ambrose stated that he suffered from post-traumatic amnesia, dizziness, temporary hearing loss, fatigue, vomiting and pain. He emphasised that he continued to experience head spins when he looked upwards, which affected both his leisure time and his performance at work. He noted that he also experienced difficulty concentrating, especially when engaging in a one on one conversation. He stated that he took two months off work as a result of the injury and suffered economic loss.

Prior conviction for intentionally causing serious injury

13 The appellant had one relevant prior conviction for intentionally causing serious injury for which he was sentenced, on 29 October 2009, to 9 months' imprisonment to be served by way of an Intensive Correction Order.

14 The circumstances of the prior offence were that, on 27 January 2008, when the appellant was 18 years old, he and some friends attended the home of a young man who was a student at the same school as the appellant and who was known to the appellant. A party had taken place at that location to which the appellant and his friends had not been invited. The appellant was drunk. The victim was kicked in the leg by another male, at which point, without any provocation or prior history of animosity, the appellant struck the young man to the side of the head with a stubby bottle which broke and caused him to stumble to the ground. The appellant kicked the victim while he was on the ground. The victim also said that the appellant and another person had rammed into him with a steel trolley. The victim suffered a three centimetre laceration to his right eyebrow, two black eyes, and bruising to his nose, face, right wrist, right shoulder, leg and back. The appellant pleaded guilty to intentionally causing serious injury.

15 In sentencing the appellant, Judge Murphy had regard to the appellant's youth, immaturity and the recent birth of his first child, and accepted that the conduct was an 'out of character act' and that the appellant had significant insight into his behaviour.[1] Judge Murphy also considered as significant the appellant's post-offence conduct, including his admissions to the police, his guilty plea and his apology to the complainant, which was accepted.[2] Judge Murphy referred to evidence from the appellant's step-father, Brian Mitchell, and the appellant's brother as to the appellant's remorse.[3] Having regard to these matters, Judge Murphy also concluded that the appellant's prospects of rehabilitation were very good.[4]

16 The appellant's parents migrated from the Philippines to Australia when he was approximately six months old. His parents separated when he was approximately two years old and he remained in his mother's care but had regular contact with his father. His mother later married Mr Mitchell, with whom the appellant had a good relationship.

17 The appellant completed his secondary schooling at Rowville Secondary College but did not complete Year 12. He initially worked in retail and as a labourer and commenced a carpentry apprenticeship in 2010 with KPC Constructions Pty Ltd. At the date of the plea hearing, he was approximately two months from completing his apprenticeship.

18 The appellant had been in a relationship with Ms Sergides since 2008, and had two children with her, aged four and 16 months. He had recently become engaged to Ms Sergides who, at the date of the plea, was five months pregnant with their third child. The appellant was the sole bread winner for his family.

19 Mr Mitchell gave evidence that the appellant had experienced 'fairly tough times' during his schooling years because he was not Australian. Mr Mitchell stated that he had assisted the appellant to obtain his carpentry apprenticeship and had also assisted the appellant to buy a property with Ms Sergides by acting as a guarantor for the appellant's mortgage. He stated that it appeared that the appellant had fulfilled all of his obligations to the lender on an apprentice's salary. Mr Mitchell said that the appellant had been hard on himself for his most recent offending. Mr Mitchell gave evidence that, since his arrest, the appellant had cut back on drinking which was said to reflect on his growth and character and as a person. Mr Mitchell stated that the appellant had a large friendship group that looked up to him.

20 Ms Sergides gave evidence that, prior to the incident that gave rise to the appellant's prior conviction, she did not have much of a relationship at all with the appellant. She stated that, after that incident, the appellant began to disassociate himself from the people with whom he used to spend time. She stated that, after their second child was born in February 2013, the appellant became a 'full on father'. She gave evidence that the night of the offending, 3 March 2013, was the appellant's first night out since the birth of their second child.

21 Ms Sergides also gave evidence that, immediately after committing the offences on 3 March 2013, the appellant returned to the car and said, 'Fuck, what have I done? The guy hit his head on the concrete, he's passed out. I hope he's alive' and 'I didn't mean to, I don't know what happened'. She described the appellant as 'freaking out' and stated that he began crying. She gave evidence that, as they drove home, the appellant was calling friends who were still at the venue to check on Mr Ambrose's health and that the trip was otherwise silent.

22 Ms Sergides stated that since the date of the offences the appellant had 'unbelievably changed' and that he had 'pulled his socks up'. She stated that he rarely went out and, when he did, it was no longer to the point of intoxication. However, she mentioned that, since 3 March 2013, the appellant became drunk on one occasion at a party to celebrate his birthday. However, on that occasion he was 'completely fine' by the end of the night and went home with Ms Sergides.

23 Ms Sergides also gave evidence that the appellant and others had informed her that, after the night of the offending, he had attended a club where a fight broke out. However, on this occasion, the appellant did not involve himself in the fight and later expressed to Ms Sergides that he had stopped himself.

24 A number of character references were also tendered at the plea. Martin Stow, construction manager for KPC Constructions Pty Ltd, stated that the appellant was a person who could be relied on and trusted and that he seemed to have a bright future with the company and in the building industry. Michael Wood, general manager and director of the same company, stated that it was the company's intention to employ the appellant once he finished his apprenticeship. Ms Sergides, the appellant's mother and the appellant's brother wrote letters in which they stated that the appellant was remorseful.

25 In a separate letter addressed to the Court, Ms Sergides provided further details about her current pregnancy, the complications that she was experiencing during that pregnancy - which included admission to hospital on numerous occasions with severe dehydration - the complications that had arisen with her two previous pregnancies which had resulted in her children being delivered by caesarean section and the arrangements that the appellant had made to assist her in relation to the birth of her third child.

26 In a report dated 22 November 2013, Patrick Newton, a forensic and clinical psychologist, expressed the opinion that the appellant's mental status was normal and that there were no diagnostic criteria for any mood disorder, anxiety-related disorder or adjustment disorder. Mr Newton stated that the appellant was immature for his age. In relation to the appellant's drinking, Mr Newton said that it had been sufficiently severe to warrant the diagnosis of 'Alcohol-Use Disorder' which was 'In Early Remission'. Mr Newton referred to the appellant's 'anger-related problems' and recommended treatment to address anger management and alcohol abuse.

27 On the plea hearing, the appellant tendered a letter of apology to the Mr Ambrose, which was dated 23 April 2013. In that letter, the appellant expressed remorse and offered to pay the reasonable medical costs of Mr Ambrose arising out of his injury.

28 The appellant also tendered a letter from PT Counselling Pty Ltd confirming that he had completed an anger management program. The letter stated that the appellant was remorseful for his past behaviour, had developed more self-awareness and control over his behaviour and should be able to manage his anger more successfully in the future.

29 The appellant has not re-offended since 3 March 2013.

30 The sentencing judge stated that the objective gravity of the appellant's conduct was self-evident and was in no way lessened by his drunkenness. He attacked a defenceless man who was lying on the ground and did not pose any threat to him or his friends. The appellant's conduct was morally reprehensible and cowardly.[5]

31 The judge stated that the appellant's prior conviction for intentionally causing serious injury 'hangs like a black cloud over this proceeding'.[6] He stated that the circumstances of the appellant's offending that gave rise to the prior conviction had an 'eerie and disturbing similarity' to the circumstances disclosed in charges 1 and 2.[7] He regarded the appellant's re-offending as of great concern and stated that it must qualify any assessment as to the appellant's character and prospects for rehabilitation.[8]

32 In respect of Mr Mitchell's evidence, the judge noted that Mr Mitchell had previously given evidence in support of the appellant on the hearing of his plea in October 2009, namely, that he had noticed major change in the appellant following the offence. The judge stated that it was self-evident that Mr Mitchell's earlier view that the appellant had curbed his drinking was misplaced.[9]

33 The judge accepted the following submissions made by the appellant:

(a) Any sentence imposed on the appellant must be mitigated by his admissions to the police - without which it would have been difficult to prove that he had caused Mr Ambrose's head injury - and his early guilty plea.[10]

(b) The appellant appeared to have a level of insight into his conduct, accepted responsibility for his offending and was genuinely contrite.[11]

(c) The appellant's conduct was spontaneous rather than planned and his decision to become involved in the fight was momentary. Nonetheless, the judge stated that great damage could be done in a moment.[12]

(d) There were some positive indicators that the appellant could reintegrate into society and be a productive family-focused man. However, the judge stated that the assessment of the appellant's future prospects for rehabilitation must necessarily be guarded as a result of his offending history.[13]

(e) A term of imprisonment would be made more burdensome for the appellant because of his separation from his pregnant partner and two young children.[14]

(f) The appellant had a proven capacity to work, close family ties and a domestic relationship which were atypical for many violent offenders. However, the judge did not unreservedly accept the appellant's submission that he was not a thug, noting that, on two occasions, he had behaved like a thug and would need to demonstrate to those who supported him that he would never engage in wanton violence again.[15]

(g) The appellant was still relatively young and presented 'as even more youthful than [his] years'.[16]

34 The judge stated the following about the statement by counsel for the appellant that the Court had the option of imposing a period of imprisonment in conjunction with a Community Correction Order ('CCO'): 'In my view, these submissions are fanciful and any such disposition would not comprehend the objective gravity of [the appellant's] offending.'[17]

35 The judge considered that, in the circumstances, both general and specific deterrence were salient sentencing considerations. He described street violence as abhorrent and terrifying to the community, as well as to the victim of an entirely unjustifiable assault. He stated that the appellant's conduct demanded a not insignificant term of imprisonment.[18]

Parties' submissions on Ground 2: Manifest excess

36 The appellant relied on two bases for his contention that the total effective sentence of 3 years' and 8 months' imprisonment was manifestly excessive. The first basis was that the sentence was inconsistent with current sentencing practice. The second basis was that the sentence failed to properly take into account the cumulative effect of the relevant mitigating circumstances.

Parties' submissions on current sentencing practice

37 In relation to current sentencing practice, the appellant relied on sentencing statistics as well as two decisions which were said to be comparable to his case.

38 The statistics upon which the appellant relied were sentencing snapshots published by the Sentencing Advisory Council. In support of his contention that the sentence imposed on him for the offence of recklessly causing injury was considerably heavier than most sentences for that offence, the appellant relied on Sentencing Snapshot 157. This snapshot stated that, during the period from 2008-09 until 2012-13: 53 per cent of offenders were sentenced to a term of imprisonment; the median prison term was 2 years and 6 months; and the median non-parole period was 1 year and 6 months. Although no separate sentence was imposed for the affray, he submitted that the sentence imposed on him was considerably heavier than most sentences for that offence. The appellant relied on the Sentencing Snapshot 135 which stated that, during the period from 2006-07 until 2010-11, 16 per cent of offenders were sentenced to a term of imprisonment and the median prison term was 11 months.

39 The Crown submitted that sentencing snapshots were of limited assistance.[19] This was said to be particularly so in the present case where the snapshots did not disclose the existence or nature of prior convictions. The Crown further submitted that it was misleading for the appellant to submit that the sentence imposed on the individual charges of recklessly causing serious injury and affray were 'considerably heavier' than most sentences for those charges. This was because the judge sentenced the appellant for two separate offences to an aggregate sentence, and in doing so, was not required to announce the sentences that would have been imposed for each offence had separate sentences been imposed or whether those sentences would have been imposed concurrently or cumulatively.[20] The Crown noted that, according to the Sentencing Advisory Council's Sentencing Snapshot 166, which provided sentencing data regarding the sentences for affray during the period 2008-09 to 2012-13, 18 per cent of offenders were sentenced to an immediate custodial term and the median term was 12 months.

40 The comparable decisions upon which the appellant relied were Director of Public Prosecutions v Russell[21] and Mogoai v The Queen.[22]

41 Russell involved a Director's appeal against a sentence of 12 months' imprisonment for a charge of recklessly causing serious injury, a sentence of 7 months with 2 months' cumulation for a charge of recklessly causing injury and a sentence of 10 months with cumulation of 1 month for a charge of affray. The total effective sentence was 1 year and 3 months.

42 The facts in Russell were as follows. When he was 21 years old, Mr Russell - who was a trained and experienced martial arts fighter - approached a group of young men who were trying to defend themselves against the violent behaviour of one of Mr Russell's friends, Mr Closter. Mr Russell punched one of the young men in the face, causing him to fall onto the road. The victim suffered significant bruising of his left cheek and lower lip, pain in his right elbow and hip, and emotional trauma. Mr Russell then punched a second young man once in the jaw, causing him to fall backwards and end up on the edge of the road and footpath. The victim suffered a serious fracture of the jaw, pain and emotional trauma. In the meantime, Mr Closter punched a third young man on the left side of the face, causing him to fall backwards onto the brick pavement. The victim sustained fatal head injuries.

43 The Court of Appeal upheld the Director's appeal. The Court stated that it was a serious affray, that Mr Russell's role in it was very significant, and that Mr Russell's presence 'enabled and encouraged' Mr Closter to continue his attack on the third victim.[23] The Court also held that Mr Russell foresaw a high probability that serious injury would result from his punch to the second victim.[24] The Court resentenced Mr Russell to 2 years' and 6 months' imprisonment for the first charge, 18 months' imprisonment with 3 months' cumulation for the second charge and 15 months' imprisonment with cumulation of 3 months for the third charge. The total effective sentence became 3 years.

44 The appellant submitted that there were similarities between his circumstances and those in Russell, as well as three significant differences between his offending and the offending in Russell. The similarities were said to be that the appellant and Mr Russell were both young offenders who pleaded guilty and who had a relevant prior conviction (Mr Russell had a prior conviction for recklessly causing injury). The three significant circumstances in the offending in Russell that were not present in the appellant's case were said to be as follows. First, Russell involved two victims upon whom Mr Russell applied his martial arts skills. Secondly, Mr Russell was aware of the consequences of his actions and had not expressed any remorse. Mr Russell told his ex-girlfriend that he had hit one of the victims so hard that he did not think that the victim would walk again, whereas the appellant said to Ms Sergides, 'Fuck, what have I done?' and 'I didn't mean to'. Thirdly, Russell involved a serious affray which resulted in a death.

45 The appellant submitted that, as the offending in Russell was more serious than his offending, the total effective sentence in his case had to be less than 3 years in order for it not to be manifestly excessive.

46 Mogoai involved an appeal against sentence by two young offenders who had each pleaded guilty to a charge of recklessly causing serious injury and a charge of affray. They had been sentenced to 2 years' and 5 months' imprisonment on the first charge and to 9 months' imprisonment with cumulation of 1 month on the second charge. The offenders had engaged in an unprovoked attack on the victim in a public place, subjecting him to a 'savage volley of punches' which resulted in the victim sustaining 'multiple facial fractures to bones around his eyes and nose - requiring hospitalisation, surgery and the insertion of metal plates around his eye sockets.'[25] The assault also had a profound psychological effect on the victim. Although this Court dismissed the appeal, it stated that, having regard to the offenders' youth and prospects of rehabilitation, the sentences imposed on them were stern.[26]

47 The appellant relied on the following similarities between his circumstances and those in Mogoai: both cases involved a relevant prior conviction (the offenders in Mogoai had been sentenced for recklessly causing serious injury in the Children's Court), delay, a guilty plea, remorse, supportive families and a good employment record. The appellant submitted that, as this Court described the total effective sentence in Mogoai as stern, the higher total effective sentence imposed on him would have to be considered as manifestly excessive.

48 The Crown submitted that the circumstances of the appellant's offending were much more serious than the offending in Russell and Mogoai. Both of those cases involved facial injuries resulting from a punch rather than an acquired brain injury resulting from a kick. Further, the victims in Russell and Mogoai were upright when they were assaulted whereas Mr Ambrose was on the ground and posed no danger to the appellant or his friends. The Crown emphasised that, notwithstanding that the appellant was intoxicated, he knew what he was doing because he was able to remember what had occurred. He also knew, so it was said, that he was capable of being violent when drunk.

49 The appellant submitted that there were a number of discrete mitigating circumstances which, viewed cumulatively, supported the contention that the sentence fell outside the range of sentences reasonably open to the sentencing judge. In support of his submission, the appellant placed emphasis on the following mitigating factors:

(a) his early plea and admissions to the police;[27]

(b) his remorse, as evidenced by his statements to Ms Sergides, his friends and family and his letter of apology to Mr Ambrose;

(c) the fact that the offence was not premeditated;

(d) the fact that he did not commit any offences between January 2008 and March 2013 and after the latter date;

(e) his good (albeit guarded) prospects of rehabilitation;

(h) the delay in the disposition of the matter (despite his early plea);[28]

(i) the fact that this would be his first time in prison;

(j) the fact that prison was especially burdensome because of his awareness that his family would experience hardship;[29] and

(k) he was a young father of two young children with a pregnant wife.

50 In relation to delay, the appellant submitted that the delay of 15 months between his offending and his sentence was relevant in two respects. First, the prospect of imprisonment hung over his head during that period. Secondly, during that period, his conduct demonstrated that he had good prospects of rehabilitation. This was said to be demonstrated by the following:

(a) he had significantly reduced his intake of alcohol;

(b) he had received counselling for alcohol abuse[30] and anger management;[31]

(c) he largely stayed home with his family rather than going out with his friends; and

(d) he had remained in stable employment, had two months left of his apprenticeship, and was assured employment after completion of his apprenticeship.

51 The appellant also contended that his offending did not include aggravating factors which were not uncommon for offences of this type, such as premeditation, repeated attacks, weapons or gang violence.

52 The Crown submitted that the sentence imposed by the judge was reasonably open to him and was not impugned by any of the factors listed at [49] above. The Crown noted that the judge expressly took into account each of those considerations other than delay. In relation to delay, as the judge referred to the absence of any offending since 3 March 2013 and the appellant's prospects of rehabilitation, it was unlikely that the judge would have imposed a different sentence if he had expressly adverted to the delay.

53 In relation to the appellant's consumption of alcohol, the Crown referred to Ms Sergides's evidence on the plea that there was an occasion after the offending in which the appellant became intoxicated at a party.[32] The Crown also relied on Mr Newton's report which, after recording what the appellant said about his reduced alcohol intake, stated that the appellant had not yet overcome his problem with alcohol abuse.

54 The Crown also submitted that the appellant's offending involved aggravating factors including acting in company, offending on a busy public street, and the significant and ongoing impact of the injuries to Mr Ambrose.

Parties' submissions on disposition if sentencing discretion reopened

55 The appellant submitted that, if the Court decided that the sentence was manifestly excessive then the Court should resentence him to a total effective sentence of one year with a CCO for 12 to 18 months with conditions requiring him to perform unpaid work and to undergo alcohol counselling. The appellant relied on Boulton v The Queen[33] in support of the proposition that, for a young offender such as himself, a CCO was a suitable vehicle for balancing the competing sentencing considerations of punishment and rehabilitation. He referred to observations in Boulton[34] that time has a 'wholly different dimension' for young offenders and submitted that he was a model prisoner who - unusually - had been permitted to leave prison under supervision to be present at the birth of his third child. He noted that he had already served nearly 10 months of his sentence and contended that no useful purpose would be achieved by keeping him in prison. Senior counsel for the appellant submitted that his case 'ticks all the boxes for a CCO'.

56 The appellant submitted that if this Court rejects the option of making a CCO, he should be resentenced to a total effective sentence of less than 3 years and the existing ratio between the total effective sentence and the non-parole period should be maintained.

57 The appellant tendered an affidavit sworn by Ms Sergides on 20 April 2015 for use by the Court in the event that the sentencing discretion was reopened. The affidavit set out events since the appellant was sentenced - including the birth and illness of his third child and the sale of the family home due to financial difficulties - and described the distress that the appellant felt due to his separation from his family.

58 The Crown submitted that the judge had correctly concluded that the circumstances of the appellant's offending were so serious that a CCO was inappropriate. The Crown tendered a report dated 18 November 2014 from Mr Dowling for use by the Court in the event that the sentencing discretion was reopened. That report concluded that Mr Ambrose had 'shown significant persisting acquired cognitive limitations' from his brain injury and that there was 'little prospect for any significant further recovery'.

Analysis and conclusion on Ground 2: Manifest excess

59 In our opinion, the aggregate sentence of 3 years' and 8 months' imprisonment for the offences of recklessly causing serious injury and affray was not manifestly excessive.

60 We have not found the sentencing statistics to which the parties referred of any assistance. Those statistics say nothing about the features of each case, including the circumstances of the offending, the presence of any aggravating or mitigating circumstances and whether the offender pleaded guilty. We agree with the following observations of Priest JA in Nash v The Queen:[35]

Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of 'serious'. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum, to head sentences of imprisonment in double figures at the high end.[36]

61 The decisions in Russell[37] and Magoai[38] were unhelpful. There are significant dissimilarities between those cases and the present case. First, the victims in those cases were not in the same vulnerable position as Mr Ambrose who was lying on the ground. Secondly, the violent acts in Russell and Mogoai were punches rather than kicks to the head, thereby increasing the risk of serious injury. Thirdly, the injuries received by the victims in those cases were far less serious than those inflicted by the appellant, as the former did not involve brain damage. The Court in Mogoai described the offence in that case as 'not ... at the high end of the spectrum'.[39] Fourthly, the Court in Russell was constrained by the parity principle to impose a more lenient sentence on the charge of affray than the Court would otherwise have imposed.[40] These were not 'like' cases that could inform the appropriate sentencing range.

62 This Court recently had cause to reiterate the principles applying to the use of comparable cases in Director of Public Prosecutions v Zhuang.[41] In remarks which are apposite to the cases here cited, the Court said:

Recourse to other cases will, however, only provide some guidance as to the appropriate sentence where, having regard to the offending conduct, those cases may be seen to fall broadly within the same category of seriousness as the subject offence, and where the circumstances of the offender are not dissimilar. If that cannot be said, the cases will not be 'like' cases. Cases that are unlike may be useful only to a very limited extent, in that they may assist the court to identify 'indicative outer limits of an appropriate sentencing range'. Sentencing statistics for particular offences may serve a similarly limited function. Their citation will, save in unusual cases, be unhelpful in the sentencing task.[42]

63 The very serious nature of the injury suffered is highly relevant to the sentencing disposition. Where a victim suffers brain damage from an assault which does not involve a weapon, sentences of imprisonment exceeding 3 years and 8 months for recklessly causing serious injury[43] or intentionally causing serious injury[44] are well within the sentencing range in cases where the offender had pleaded guilty. In Marrah v The Queen,[45] where the victim suffered bruising to various areas of her body, a fractured cheekbone, abrasions and superficial scratches, this Court held that a sentence of 8 years' imprisonment for recklessly causing serious injury was manifestly excessive. In resentencing the offender to 6 years' imprisonment, the Court said:

Sentences imposed for intentionally or recklessly causing serious injury offences in the worst category of cases, and which have attracted sentences of the order here imposed, have generally been for offending involving the infliction of catastrophic physical injuries, often accompanied by permanent brain damage. In comparison to these, the complainant's injuries ... must necessarily be seen as less serious.[46]

64 In Director of Public Prosecutions v Terrick,[47] this Court held that sentences for intentionally causing serious injury need not necessarily be higher than sentences for recklessly causing serious injury. The Court accepted that, depending on the circumstances, a sentence for the latter offence may be the same as, or higher than, a sentence for the former offence.[48] It follows that where the nature of the injury and the other circumstances of a case involving intentionally causing serious injury are similar to a case involving recklessly causing serious injury, the sentence in the former case may be relevant to the exercise of the sentencing discretion in the latter case. As Priest JA observed in his reasons for granting leave in the present case, many of the considerations which apply to the offence of intentionally causing serious injury apply with equal force to the offence of recklessly causing serious injury.[49]

65 For the above reasons, we reject the submission that the sentence that was imposed on the appellant was inconsistent with current sentencing practice.

66 As for the mitigating circumstances upon which the appellant relied, the judge took these - other than delay - into account and balanced them against the objective seriousness of the appellant's offending and the aggravating circumstances to which the judge referred. In our opinion, it cannot be said that the instinctive synthesis in which the judge engaged resulted in a sentence that was not open to him in the proper exercise of the sentencing discretion.

67 We accept that the appellant had youth and strong mitigating factors in his favour. However, in view of the fact that he had not been deterred from alcohol-fuelled unprovoked violent offending by the non-custodial sentence that was imposed in 2009 for the offence of intentionally causing serious injury, those mitigating factors had to assume secondary importance to specific deterrence, denunciation and the need to protect the community. The prevalence of this type of offending particularly where youth and alcohol are involved - also meant that the judge had to give significant weight to general deterrence. As this Court stated in Russell:

Random street violence is a scourge on our society. Typically, the violence is brief and unpremeditated but it has profound and enduring consequences. Innocent people are killed or seriously injured; their families are devastated; their communities disrupted. And the outburst of violence is ruinous for the offender, too. Imprisonment with all its destructive consequences is virtually inevitable, as is the shame and embarrassment felt by the offender's family.

...

If young men realised that engaging in this kind of street violence would almost certainly lead to a substantial period of imprisonment in adult gaol, they might think twice before starting - or joining in - a fight. We accept, of course, that in a moment of (alcohol-fuelled) anger or aggression the capacity for rational decision-making may be impaired. But, if the inevitability of imprisonment were properly communicated, that would undoubtedly contribute to a re-thinking of attitudes to violent conduct and a heightened awareness of the need to keep oneself, and one's friends and associates, in check - especially where alcohol is involved.[50]

68 We agree with the Crown's submission that, although the judge did not expressly refer to delay, he gave sufficient consideration to the steps that the appellant had taken towards rehabilitation between the date of the offending and the date that he was sentenced. In this regard, although the appellant asserted on the appeal that he had received counselling for alcohol abuse since he offended in March 2013, our attention was not drawn to any evidence of such counselling.[51]

69 On the appeal, senior counsel for the appellant conceded that the judge was entitled to be 'guarded' about the appellant's prospects of rehabilitation. This concession was clearly correct as the promising picture of rehabilitation, underpinned by reduced alcohol consumption, that was painted at the plea hearing in October 2009 for the 2008 offence of intentionally causing serious injury did not endure. Three and a half years after that picture was painted, the appellant again became intoxicated and engaged in a vicious attack on a defenceless individual who had in no way provoked him and who posed no danger to him. The judge was justified in having reservations about the appellant's prospects of rehabilitation in view of the considerable similarities between the factors upon which he relied in his plea in mitigation in 2014 and those upon which he had relied in 2009. Then, as now, the appellant urged the Court to accept that he had learnt his lesson and was keen to moderate his behaviour. Notwithstanding this, not only did he reoffend, but his offending in 2014 was much more serious than that of 2008.

70 Senior counsel for the appellant also conceded that his offending was serious. He was right to do so. It was a serious example of the offence of recklessly causing serious injury. The objective gravity of the offending was an important sentencing consideration. So was the appellant's high moral culpability. While it is true that the offending was not premeditated, the appellant deliberately thrust himself into the violent activities of others when he could have easily kept away. And when he did walk up to where the fighting was taking place, he could have escorted Mr Ropata away. He did neither of these things. Instead, he viciously kicked the head of a man lying defenceless on the ground and inflicted a serious brain injury. Immediately after the assault, the appellant could have stayed with Mr Ambrose and called an ambulance instead of being driven away by Ms Sergides.

71 We agree with the judge's assessment that a CCO was not an appropriate sentencing option in the appellant's circumstances and that an immediate term of imprisonment was required. At the time that the appellant was sentenced, s 44(1) of the Sentencing Act 1991 specified that a term of imprisonment imposed in conjunction with a CCO could not exceed 3 months. This period was increased to 2 years with effect from 29 September 2014.[52] The judge would have been justified in refusing a CCO in conjunction with a period of imprisonment even if the amendment to s 44(1) had been in force at the time the appellant was sentenced. We do not regard the term of imprisonment that the judge imposed as stern.

72 In the light of all of the above considerations, we have concluded that the sentence that was imposed was not outside the range of sentences that were open to the judge in the proper exercise of the sentencing discretion.

73 In reaching the above conclusion, we have proceeded on the basis that there was not a complete overlap between the offence of affray and the offence of recklessly causing serious injury so that it would have been appropriate for the judge to have ordered cumulation that was not insubstantial for the offence of affray.

74 It follows from the above that Ground 2 must be rejected.

75 For the above reasons, the appeal will be dismissed.

[1] R v Raveche [2009] VCC 1400, [60], [64].

[2] R v Raveche [2009] VCC 1400, [61], [63].

[3] R v Raveche [2009] VCC 1400, [63].

[4] R v Raveche [2009] VCC 1400, [66].

[5] DPP v Raveche (Unreported, County Court of Victoria, Judge Taft, 27 June 2014) [12] ('Reasons').

[19] In support of this proposition, the Crown relied on DPP v Maynard [2009] VSCA 129, [35].

[20] Sentencing Act 1991 s 9(4)(b).

[21] [2014] VSCA 308 ('Russell').

[22] [2014] VSCA 219 ('Mogoai').

[23] Russell [2014] VSCA 308, [44].

[24] Russell [2014] VSCA 308, [52].

[25] Mogoai [2014] VSCA 219, [8]-[9].

[26] Mogoai [2014] VSCA 219, [23].

[27] The appellant relied on R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Beach and Gobbo JJ, 4 February 1992) 7.

[28] The appellant relied on R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591 and R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [10].

[29] The appellant relied on Markovic v The Queen (2010) 30 VR 589, 595 [20] and submitted that this was a discrete mitigating factor.

[30] See [68] below.

[31] As noted at [28] above, the appellant tendered evidence of completion of an anger management program.

[32] See [22] above.

[33] [2014] VSCA 342, [186].

[34] [2014] VSCA 342, [188].

[35] (2013) 40 VR 134 ('Nash').

[36] Nash (2013) 40 VR 134, 145-6 [55] (citations omitted).

[37] [2014] VSCA 308.

[38] [2014] VSCA 219.

[39] Mogoai [2014] VSCA 219, [16].

[40] Russell [2014] VSCA 308, [48].

[41] [2015] VSCA 96 ('Zhuang').

[42] Zhuang [2015] VSCA [96], [34] (citations omitted).

[43] DPP v Hossack [2014] VCC 1557, [4]-[6], [27].

[44] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 460-2 [9]-[18], 479 [93] ('Terrick'); Jacobs v The Queen [2011] VSCA 238 [1]-[5], [25]; Jackson v The Queen [2013] VSCA 14, [1]-[4].

[45] [2014] VSCA 119 ('Marrah').

[46] Marrah [2014] VSCA 119, [21] (citations omitted).

[47] [2009] VSCA 220; (2009) 24 VR 457.

[48] Terrick [2009] VSCA 220; (2009) 24 VR 457, 477-9 [86]-[91] .

[49] Raveche v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 30 October 2014) [20].

[50] Russell [2014] VSCA 308, [1], [69].

[51] See [50(b)] above.

[52] The change was effected by s 18 of the Sentencing Amendment (Emergency Workers) Act 2014.