Rivera v The Queen [2020] VSCA 5

Ms A Hogan, Acting Solicitor for Public Prosecutions

1 On 10 August 2018, the applicant pleaded guilty in the County Court to one charge of intentionally causing injury and one charge of committing an indictable offence while on bail. The maximum term of imprisonment for intentionally causing injury is 10 years, and the maximum term of imprisonment for committing an indictable offence while on bail is three months.

2 On 23 August 2018, the applicant was sentenced to a term of imprisonment of 5 years and 11 months on the charge of intentionally causing injury and a term of imprisonment of 2 months on the charge of committing an indictable offence while on bail. One month of the sentence imposed for the offence of committing an indictable offence while on bail was ordered to be served cumulatively on the sentence imposed for the offence of causing injury intentionally, making a total effective sentence of 6 years' imprisonment. A non-parole period of 4 years was fixed. Presentence detention of 409 days was declared,[1] and the judge stated that but for the applicant's plea of guilty she would have sentenced him to a total effective sentence of 8 years' imprisonment with a non-parole period of 6 years.

3 The applicant now seeks leave to appeal against his sentence on the following grounds:

1. The sentencing discretion miscarried by reason of the judge sentencing on a charge of causing injury intentionally on the basis a life-endangering injury had been intentionally caused.
2. The sentence on charge 1 [causing injury intentionally], the total effective sentence and the non-parole period are manifestly excessive having regard to all the circumstances.

4 At the time of the offending the applicant and the complainant were friends, having known each other for a number of years. The offending occurred in the apartment of a Ms Gillings, where the applicant had been staying for some five days following his release from jail in early February 2017. Some time prior to the offending, the applicant had been in a relationship with Ms Gillings. At the time of the offending, however, the complainant was in a relationship with her, living at her apartment for a couple of months on an on-again, off-again basis.

5 On 11 February 2017, the complainant and Ms Gillings caught a train from Echuca to Melbourne. When they arrived back at Ms Gillings' apartment, the applicant was there and asked for some pills. He was given some. The three of them then went out and bought some heroin. They returned to the apartment and used the heroin. The complainant fell asleep on the couch in the lounge room.

6 Shortly after midnight, the complainant woke up and saw the applicant standing over him. He had his hand wrapped in something white and he hit the complainant in his left eye. The blow felt harder than a punch such that the complainant believed that the applicant had something in his hand.

7 The applicant had two knives: one being the complainant's fishing knife, and the other being a knife that looked like a meat cleaver. He began slashing at the complainant's legs. He hit the complainant to the back of the head with an object which felt heavy and sharp. The object cut the complainant's ear, causing it to bleed.

8 The complainant grabbed a silver tin plate from the table to protect himself. He said to the applicant, 'What's the go? What's this all over, the pills?' The pills were down the complainant's pants. When he stood up the pills fell out and the applicant grabbed them. The complainant, however, snatched them back. The applicant then ran from the apartment.

9 Police arrived a short time later. The complainant was holding a towel to his arm, and to the right side of his head. He was bleeding heavily and covered in blood, and there was blood staining throughout the apartment. The complainant was missing part of his ear and his left eye was swollen and closed over. He had cuts to his head, arm and leg.

10 Paramedics arrived and treated the complainant's injuries. He was taken by ambulance to the Royal Melbourne Hospital, where the following injuries were noted:

(a) significant incisional injuries to the back of the head, including a 10 cm incision with an arterial bleed;

(b) significant right ear incision;

(c) blood collection on the back of the head;

(d) 3 cm straight deep incision of the right lower aspect of the thigh;

(e) multiple superficial abrasions including to the right forearm, left eye and right side;

(f) swelling and bruising around the left eye; and

(g) acute blood loss with identified diminished blood cell levels.

11 The bleeding was stopped and the injury cleaned and closed by specialist plastic surgery using sutures in an operating theatre. The complainant was given medication, including potent painkillers.

12 The opinion of a forensic physician, Dr Schreiber, was relied upon by the prosecution on the plea. His evidence was as follows. An assault by hitting the face and slashing or cutting body parts with knives was probable. The injuries were moderate to severe. Blood loss from an artery may progress relatively quickly and can cause unconsciousness and death. To prevent a fatal outcome a transfusion was administered in hospital.

13 The applicant was arrested on the morning of 12 February 2017, and taken to a nearby police station. He was interviewed by police and said that he could not tell them anything about the previous day. He said that he and his girlfriend (Ms Gillings) had gotten back together, and that that was the last thing he remembered. He told police that they and the complainant walked from a hotel to home, and that was all he remembered. He also told police that he was drinking and did not know what had happened after that. He said he had drunk enough to black out. He denied assaulting the complainant.

14 At the time of the assault the applicant was on bail, having signed an undertaking of bail on 14 September 2016.

15 The applicant was born in the Philippines in November 1977. At the time of his offending, he was 39 years of age. At the time of sentencing, he was 40.

16 The applicant came to Australia with his family in 1980 when he was three years of age. His mother is a social worker and his father is a carpenter. He attended school until Year 11. He then worked as a labourer and forklift driver. Subsequently, he completed a certificate in personal training at Kangan TAFE. He last worked as a personal trainer in a gym in Footscray, but otherwise has largely been unemployed.

17 The applicant commenced using cannabis and binge drinking in secondary school. He commenced using heroin when he was 20 and quickly became addicted. He has also used and abused methylamphetamine, ecstasy, Rohypnol and various prescription pills. Substance abuse and addiction has been a problem for him throughout his adult life although, when he was 37, he attended a rehabilitation program.

18 In August 2018, the applicant was examined by Gina Cidoni, a consultant psychologist. In a report tendered on the plea, Ms Cidoni expressed the following opinions about the applicant:

• he presents with borderline intelligence with a full-scale IQ of 79;

• he meets the criteria for Substance Use Disorder and intoxication in the offending period;

• there were no signs of psychosis or personality disorder, but there were signs of paranoid ideation; and

• his risk of reoffending in a violent way is medium and his drug addiction contributes to this score.

19 The applicant has an extensive criminal history going back to 1995. His prior convictions include multiple unlawful assaults, recklessly cause injury, intentionally cause injury, making threat to kill, criminal damage, drug offences, failing to answer bail, weapons offences, handling and receiving stolen goods, aggravated burglary, burglary and numerous other offences of dishonesty.

20 The judge commenced her reasons for sentence by noting that the applicant had pleaded guilty to intentionally causing injury which has a maximum penalty of ten years' imprisonment.[2] She then referred to the applicant's plea to the summary charge of committing an indictable offence while on bail, before turning to a description of the circumstances of the applicant's offending.[3] The judge described the applicant's offending as 'most serious', saying that he attacked the complainant 'when he was in a most vulnerable state, being asleep on the couch, and the attack was entirely unprovoked'.[4] The judge also described the applicant's attack as being 'of a prolonged and vicious nature'.[5]

21 The judge said that there was no impairment of mental function which would detract from the applicant's moral culpability, which she found to be 'very high'.[6] The judge then said:

I regard your offending for which I now sentence you as a most serious example of intentionally causing injury. It was no thanks to you that the complainant received help in a timely manner, and I note that the injuries sustained were of a potentially life-threatening nature.[7]

22 Next, the judge noted the applicant's 'most concerning and lengthy criminal history'.[8] The judge said that this history gave her 'serious cause for concern' in respect of the applicant's prospects of rehabilitation.[9] The judge also observed that the applicant had been sentenced to a community correction order on 7 February 2017, only a few days before his offending against the complainant.[10]

23 The judge then referred to the applicant's drug history, noting that he was now 40 years of age and that it was 'well and truly time for [him] to properly attend to [his] drug abuse issues'.[11] In the course of this discussion the judge accepted a contention made by the applicant's counsel on the plea that the applicant was getting to the stage where his offending would see him spending ever-increasing terms of imprisonment, if he survived long enough to do so.[12]

24 As to the applicant's plea of guilty, the judge noted that this was made after the complainant was 'subjected to cross-examination at a committal hearing'. The judge said that the applicant was not to be punished for taking this course, but that the discount he would otherwise receive in sentencing would not be as great as it might have been if the plea had been made earlier. The judge then said:

However, again, ultimately you have saved the witnesses the time and trouble of giving evidence in a trial, and you have saved the community the time and expense of a trial. I accept that you have facilitated justice to a fairly solid extent in taking the course that you have in circumstances where the complainant had not nominated you as being the offender, although it seems to me that this could have been readily proven from other sources of evidence. In any event I allow for a discount in the sentence that you would otherwise receive, which is fairly substantial for entering a plea of guilty at the time that you did.[13]

25 Next, the judge said that in sentencing the applicant she took into account the fact that he had been in custody for some 12 months. She said that she also 'factored in the principle of totality'.[14]

26 The judge then referred to Ms Cidoni's report, noting that it was not put that there were any Verdins[15] considerations that applied to the applicant.[16]

27 The judge then referred at some length to the applicant's background, before again returning to the applicant's prospects of rehabilitation, which she then described as being 'rather bleak'.[17]

28 The judge concluded her reasons for sentence by saying:

I must give strong weight to specific deterrence and protection of the community. I also give strong weight to general deterrence in a bid to deter others from offending as you have.

I am of the view that - contrary to the submission of your counsel - a substantial term of imprisonment is warranted in your case in all the circumstances. I appreciate that there may well be a danger of you being institutionalised, however the weight which needs to attach to the relevant sentencing factors in your case is such that I can do no other than impose a sentence which properly reflects this.[18]

Ground 1: did the judge sentence on the basis that the complainant's injury was life-endangering?

29 The applicant fell to be sentenced for the offence of intentionally causing injury. In a helpful and attractive argument, Ms Connelly of counsel, who appeared for the applicant in this Court,[19] contended that the sentencing discretion miscarried because, instead of sentencing the applicant for the offence for which he fell to be sentenced, the judge sentenced him for the more serious offence of intentionally causing serious injury.[20] It may immediately be observed that if the judge did so, this would have been contrary to principle.[21]

30 In support of her contention, Ms Connelly submitted that the Crown should not have tendered or relied upon the evidence of Dr Schreiber that blood loss from an artery may progress relatively quickly to death and that to prevent a fatal outcome a blood transfusion was administered. Additionally, she said that it was wrong for the prosecutor to tell the judge (as he did without objection during the course of the plea) that the complainant's injury was 'life-threatening'. She then submitted that the judge's reference to Dr Schreiber's evidence[22] and her Honour's statement a little later in the reasons that 'the injuries sustained were of a potentially life-threatening nature'[23] showed that the judge sentenced the applicant on the basis that he intentionally caused an injury that 'endangers life' - being a 'serious injury' as defined in s 15 of the Crimes Act 1958.

31 Ms Connolly went on to submit that the evidence concerning the complainant's need for a blood transfusion was in fact sufficient to establish that the injury inflicted by the applicant was a 'serious injury' as defined. In making that submission, Ms Connolly relied upon this Court's decision in Peters v The Queen [No 2],[24] a decision handed down after the applicant was sentenced by the judge.

32 In Peters, this Court held that the issue of seriousness 'is to be determined at the time of the injury, albeit informed by hindsight given subsequent events'.[25] In that case (albeit involving an earlier definition of the expression 'serious injury' in the Crimes Act) this Court held that it was well open for a jury to find that infection with the hepatitis C virus constituted a serious injury, 'given the potential adverse consequences of [that] disease'.[26]

33 Ms Connolly contended that the reference by the judge to the 'potentially life-threatening nature' of the complainant's injuries showed that the judge sentenced the applicant for an offence involving the causing of a serious injury as defined in the Crimes Act - the potential adverse consequences to the complainant being the endangerment of his life if no transfusion was administered.

34 Ultimately, the issue is whether the judge sentenced the applicant for an offence other than the one for which he fell to be sentenced or relied upon, as an aggravating matter, a circumstance which could have formed the basis of a distinct (and in this case more serious) charge.[27] In our view, the judge made no such error. Four points may be made.

35 First, we observe that no objection was taken on the plea hearing to the admission of Dr Schreiber's opinion concerning the complainant's need for a blood transfusion to avoid a potentially fatal outcome. Nor was any issue taken on the plea by the applicant's plea counsel to the prosecutor's use of the word 'life-threatening'.

36 Secondly, evidence suggestive of a serious injury in a case involving an offence involving injury simpliciter is not necessarily inadmissible. Such evidence may be admissible in order to properly delimit the nature and extent of the injury which is the subject of the relevant offence of causing injury.

37 Thirdly, the offence to which the applicant pleaded guilty was one of intentionally causing injury. While the injury actually caused may have satisfied the definition of 'serious injury' in the Crimes Act, there is no suggestion that the judge sentenced the applicant on the basis that he intentionally caused a serious injury. The extent of the injury actually caused by an offender may be discrete from the extent of the injury that the offender intended to cause. In the present case, while it might be thought that the applicant caused the complainant to suffer a serious injury and that he undoubtedly caused an injury, there was no suggestion he intended to cause a serious injury.

38 Ms Connolly sought to answer this point by saying that, on the plea, the prosecutor conceded that the complainant's injury was not serious. In her submission it was not open for the judge to view the injury as serious within the meaning of the Crimes Act, while sentencing the applicant on the basis of an intention merely to cause injury.

39 We do not accept this submission. This issue, like a number of issues on the plea,[28] was not explored or defined with any precision. Having read the transcript of the plea hearing, we are not persuaded that the judge was not entitled to record in her reasons for sentence the potentially life-threatening nature of the complainant's injury as disclosed by the evidence that was tendered without objection.

40 Fourthly, having noted at the commencement of her reasons that the applicant had pleaded guilty to a charge of intentionally causing injury, the judge was at pains later to say that she was now required to sentence him for 'a most serious example of intentionally causing injury'.[29] Contrary to the applicant's submissions, the judge made no error of the kind identified by the High Court in De Simoni.

41 Having regard to the existence of the offence of intentionally causing serious injury, and in circumstances where the injury inflicted in this case was of 'a potentially life-threatening nature', and thus perhaps also serious within the meaning of the Crimes Act, it may have been preferable for the judge to specifically note that the applicant did not fall to be sentenced for the more serious offence. We are not persuaded, however, that the judge committed the error contended for by the applicant.

42 In the circumstances, while ground 1 is sufficiently arguable to justify a grant of leave, ultimately it must be rejected.

Ground 2: was the sentence manifestly excessive?

43 Under ground 2, the applicant contended that the sentence imposed for intentionally causing injury, the total effective sentence and the non-parole period were all manifestly excessive having regard to all the circumstances. The applicant particularised the relevant circumstances as follows:

(a) the maximum penalty of 10 years for the offence of intentionally causing injury;

(b) plea of guilty attracting a 'fairly substantial' discount;

(c) the applicant had to be sentenced on the basis he intentionally caused injury rather than serious injury;

(d) the absence of evidence the injury was protracted;

(e) the application of the principle of totality;

(f) risk of institutionalisation;

(g) the absence of findings as to matters of aggravation such as motive, planning and foresight of drug use leading to violence;

(h) current sentencing practices.

44 As to current sentencing practices, the applicant, while acknowledging the limits that can be placed on the use of statistics, pointed to the fact that the sentence imposed (on a plea of guilty) was 12 months longer than that imposed on any other person sentenced for intentionally causing injury between 2012-13 and 2016-17.

45 Undoubtedly, the sentence imposed by the judge was high. In our view, however, the explanation for it is the applicant's appalling criminal record - and in particular his bad criminal record in relation to offending involving violence.

46 As has been said many times before, manifest excess is a difficult ground to make out. In order to make out a complaint of manifest excess it must be shown that the sentence was wholly outside the permissible range of sentencing options available to the judge.

47 While the sentence in this case is, as we have said, high, we are not persuaded that it was so high as to be wholly outside the permissible range available to the judge (or even arguably so). As the judge correctly observed, the present case was a very serious example of the offence of intentionally causing injury, notwithstanding the various matters relied upon by the applicant in the particularisation of ground 2.

49 Leave to appeal on ground 2 will be refused. While leave to appeal on ground 1 will be granted, the appeal will be dismissed. We will, however, make the consent order sought varying the judge's declaration of presentence detention from 409 days to 414 days.[30]

[1] In argument we were told that there was an error in the calculation of presentence detention on the plea. The parties were agreed that the figure declared should have been 414 days. In the event that the applicant was unsuccessful in this Court, the applicant sought by consent, pursuant to s 325(2) of the Criminal Procedure Act 2009, that the judge's declaration of presentence detention be varied from 409 days to 414 days.

[2] DPP v Rivera [2018] VCC 1318 ('Reasons'), [1].

[15] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[19] But not on the plea before the sentencing judge.

[20] Contrary to s 16 of the Crimes Act 1958.

[21] See R v De Simoni (1981) 147 CLR 383, 389 ('De Simoni').

[24] [2019] VSCA 292 ('Peters').

[27] Cf De Simoni (1981) 147 CLR 383, 389.

[28] For example, the precise type of weapon used by the applicant when he struck the complainant to the head causing the injury that required a blood transfusion was never identified with any precision.