1 This is an appeal against a sentence of 11 years' imprisonment, with a nonparole period of eight years and six months, which was imposed on the appellant following his plea of guilty to one count of intentionally causing serious injury.

2 The victim of the offence was the appellant's wife, Monica Robbins. Prior to the offence, the couple lived on a farm with their three daughters, aged eight, six and three and with Ms Robbins' daughter from a previous marriage, Michaela, who was 14 years old.

3 The offence took place on the evening of 5 April 2010. Ms Robbins was talking to her mother on the telephone and made a critical remark about the appellant, who was sitting nearby.

4 The appellant started breathing heavily and picked up a metal claw hammer, which he had previously been using to repair a fence on the farm. Using both hands, he struck Ms Robbins three times on the back of her head with the hammer. The violence involved in the offence was described by the sentencing judge as follows:

you hit her on the head with enormous force. You repeated the blow again with such force that the hammer became embedded in her skull and it took effort for you to get it back out. But you did get it back out and you struck her on the head for a third time.[1]

5 The appellant apologised to Michaela, who had witnessed the assault on her mother, and immediately left the property, leaving the three younger children behind and Michaela to call an ambulance.

6 During the attack on Ms Robbins, the appellant's three young daughters were in their bedrooms. Delta Robbins, aged five, told police that she looked out her bedroom several times. She said she 'saw the hammer and I heard "Sorry, sorry, look after the kids", and then he just drove off'. She later saw her mother lying over the side of the chair with 'heaps' of blood coming out of her nose, and on her arm and head.

7 Ms Robbins was airlifted to the Alfred Hospital with life threatening head injuries. The extent of her 'devastating' injuries is described below.

8 The appellant then considered, but did not commit, suicide. The next morning, he drove to the house of a friend. He told his friend that his wife was dead and no one could have survived what he did to her. The sentencing judge commented that, in reaching this conclusion, the appellant 'relied on [his] long experience as a farmer, having to put animals out of their misery with heavy blows to the head'.[2]

9 The appellant then gave himself up to police and in a subsequent record of interview, confessed to the assault on his wife.

10 He pleaded guilty to the charge of intentionally causing serious injury.

11 The learned sentencing judge described the injuries suffered by the victim as follows:

The injuries sustained by Ms Robbins were devastating. The consequences for her involved life changing and lifelong disabilities...

Ms Robbins sustains extensive fractures to her skull, face and right eye socket. She had very significant bruising and trauma and bleeding within her brain. Fragments of skull bone had to be removed from her brain tissue and repairs done to contain her brain within her skull for it was escaping, such was the extent of the skull damage.

There was very serious trauma to her right eye at every level. Initial neurological or brain surgery was directed at removing bone fragments, including cleaning the wounds. Necessarily a large hole had to be left in her skull to allow for the swelling. Ms Robbins was then in intensive care, or the intensive care unit for over two weeks. She was first transferred to the Royal Talbot Rehabilitation facility and then on 5 May 2010, closer to home, at the Grace McKellar Rehabilitation Facility in Geelong.[3]

12 As a result of her injuries, Ms Robbins had a hole in her skull. She required surgery to insert titanium mesh in order to protect her brain.[4]

13 His Honour noted that Ms Robbins has permanently lost sight in her right eye, and is unable to use her left arm and left hand. She requires assistance with toileting and showering. Although her mobility was gradually improving, it was likely that she would always suffer from left side weakness and would have to rely on a wheelchair to travel longer distances. Fortunately, she did not suffer any cognitive impairment.

14 In her victim impact statement, Ms Robbins said that she has no sense of taste or smell. She explained that:

All I can feel are textures of food. I used to really enjoy food and going out for dinner; I don't now, as I have to get someone to cut my food up and it's embarrassing when everyone seems to be looking at me.

15 In assessing the gravity of the offending, his Honour said:

Foremost are the grave injuries and the ongoing dreadful consequences suffered by Ms Robbins. These injuries show the ferocity of your attack. Without more, it puts your crimes in the upper echelons of crimes of this kind. What must be added is that you so dreadfully attacked Ms Robbins, right before the eyes of her 14 year old daughter. That fact and the impact upon Michaela are factors making this offending more grave.

Likewise, but to a lesser degree, I take into account the fact that Ms Robbins was in conversation with her mother at the time. Her mother was unsure and worried about what had happened. Also your other children when nearby inside the house, they were not completely sheltered from the horror of what occurred outside on the verandah. In addition, this was unbridled violence in the home where Ms Robbins was entitled to feel safe.[5]

16 His Honour noted the submission that the offence was the result of a 'momentary loss of control'. His Honour accepted a psychiatric report from Dr Lester Walton that the appellant had 'unresolved anger' towards his wife because she spent a year in prison for arson and he had had to care for the children and run the farm during this period.[6]

17 The judge accepted that the appellant was 'profoundly remorseful' for attacking his wife.[7] His Honour noted the appellant's 'horror' at his actions and his empathy for his victim,[8] and concluded that his prospects of permanent reform were 'very good'.[9] His Honour took into account the appellant's guilty plea, the fact that he had no prior convictions,[10] and the various efforts he had made while on remand.[11] He noted that these should not be given mere lip service because of the severity of the victim's injuries.[12] His Honour said however, that:

whatever can be said about your past and your character, the brutality of your offending, one blow followed by another, reveals matters about you that are, and remain, of concern.[13]

18 The appellant argued that both the term of imprisonment imposed on him, and the non-parole period, were manifestly excessive, having regard to his lack of prior convictions and his otherwise good character, his profound remorse, his early plea of guilty, and his voluntary surrender to police. Reference was also made to the appellant's 'sterling job' in taking care of his children during his wife's incarceration.

19 This was said to be a most unusual case because the appellant had never previously been violent to his wife and his attack on her was not triggered by her threatening to leave him. The appellant argued that his moral culpability was reduced because of 'the emotional stress that had sprung from his unresolved ― and hitherto unknown ― anger towards his wife because of her incarceration'. Reliance was placed on Neal v The Queen,[14] in which Brennan J observed that:

Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor... The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence.[15]

20 It was also submitted that the sentence imposed on the appellant was manifestly excessive when regard was had to current sentencing practices. There were only two Victorian cases in which a higher sentence of imprisonment been imposed on an accused found guilty of intentionally causing serious injury. These were Ali v the Queen,[16] and DPP v Terrick.[17]

21 The appellant argued that unlike the protracted assaults in Ali and Terrick, the appellant's attack on his wife only lasted a matter of seconds; that her injuries, although serious, were not catastrophic, whereas the victims in Ali and Terrick were unable to care for themselves; and that unlike the offenders in Ali and Terrick, the appellant did not have a prior history involving violence.

22 In response, the Crown submitted that the sentencing judge had taken account of all relevant mitigating factors. The Crown pointed to the ferocity and unprovoked nature of the attack, the appellant's failure to provide assistance to his wife after he attacked her and the commission of the offence in the presence of his stepdaughter and within earshot of his three other young children. Reliance was also placed on the permanent effect of the injuries suffered by the victim, and the life-changing effects of the crime on her and the children.

23 This is a troubling appeal. On the one hand, the appellant received a sentence of only 55% of the maximum term of 20 years' imprisonment applicable to this offence. That sentence was imposed for offending which the judge described as 'in the upper echelon' of crimes of this kind.

24 The sentencing judge's characterisation of the seriousness of the offending was clearly correct. From the point of view of the victim, the consequences of the attack were catastrophic, although unlike the victims in Terrick and Ali, she did not suffer a cognitive impairment as a result of her head injury. However, I would accept the argument that the appellant's attack on his wife, appalling as it was, was not as sustained or violent as the assaults committed by the offenders in Terrick and in Ali.

25 In Terrick, two offenders pleaded guilty to a single count of intentionally causing serious injury.[18] The offence involved a sustained attack on a randomly selected tourist who was savagely kicked several times in his upper body and head. The victim suffered permanent severe brain damage. Terrick and his co-offender Marks were indigenous men, each of whom had come from a deprived and dysfunctional background. Both of them were alcoholics, their deprivation had contributed to their alcohol abuse and both had numerous prior convictions for offences involving violence.

26 In sentencing these offenders, this Court gave weight to the importance of community protection because of the unprovoked, random and savage nature of the assault, the offenders' escalating criminal history, and the link between their alcoholism and their record for violence. Both men were regarded as having limited prospects of rehabilitation.

27 On a Director's appeal, to which the principle of double jeopardy then applied, this Court re-sentenced each man to a total effective sentence of 11 years and six months' imprisonment with a nonparole period of nine years.

28 In Ali, this Court upheld a sentence of 15 years' imprisonment, with a nonparole period of 12 years, which had been imposed on an offender who assaulted the victim in a prison cell. The assault involved the offender jumping on the victim's head and/or stomping on it several times. The respondent had a lengthy record of convictions involving violence.

29 The attacks in Ali and Terrick was more sustained and brutal than the assault which occurred in this case and the offenders had a history of carrying out violent assaults on others. Further, this appellant could rely on a constellation of mitigating factors which are rarely present in cases of this kind.

30 The sentence imposed in this case would not fall outside the range of sentences which could be imposed on an offender who pleaded guilty to attempted murder or manslaughter arising out of an unlawful or dangerous act. These considerations tend to support the appellant's argument that the sentence imposed was beyond the range of sentences which could properly have been imposed on this offender, for this offence.

31 On the other hand, in Hudson v The Queen,[19] this Court cautioned against reasoning from the fact that higher or lower sentences had been imposed in other cases to establish that the challenged sentence was manifestly excessive (or manifestly inadequate):[20]

On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.

The applicant did not confine the use to be made of comparable cases to providing a guide as to the range of sentences that were appropriate. An attempt to demonstrate that within the determined category ― the worst category of the offence ― there were worse cases which had attracted the same sentence or that there were cases no worse which had attracted a lesser sentence, does not disclose whether the challenged sentence is unreasonable or unjust.

...

Once there are features of the offending which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features. The 'worst' category is to be understood as the joint judgment in Veen v The Queen (No 2)[21] described it:

... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen.[22] That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.

32 Section 5(2) of the Sentencing Act 1991 requires a sentencing judge to have regard to the maximum penalty for the offence[23] and to current sentencing practices,[24] as well as to other enumerated matters. In this case, there is a tension between these requirements. An examination of the range of sentences imposed for this offence suggests the sentences imposed for the more serious examples of the offence may not adequately reflect the maximum penalty. However, the Crown did not argue below that the current sentences imposed for this offence were too low. It submitted that a maximum term of imprisonment of nine to eleven years would be appropriate. As his Honour noted, this contemplated that a sentence of less than half the maximum would be appropriate for an offence of this degree of gravity.

33 I have taken account of this Court's warning in Hudson against reasoning that a sentence is manifestly excessive simply because there were worse cases which did not attract much higher sentences. Nevertheless, the sentences imposed for offences falling into the worst category of this offence provide some guidance on the current sentencing range. The appellant received a sentence at the very top of the range of sentences which have been imposed in Victoria for the offence of intentionally causing serious injury. Despite the appalling nature of the appellant's attack on his wife and the life long consequences of that attack on his victim, I do not consider that the offence fell within the very worst category of intentionally inflicting serious injury. Nor did his Honour suggest that it was a 'worst case' example of the offence, although he placed it in 'the higher' echelon of criminality. Further, the appellant was able to rely on mitigating factors not available to the offenders in Terrick or Ali, including his deep remorse, his lack of prior offending and his excellent prospects of rehabilitation.

34 With some hesitation, I conclude that, when regard is had to current sentencing practices, as well as to other relevant sentencing considerations, the head sentence of 11 years' imprisonment fell outside the range of sentences which could be imposed in the reasonable exercise of his Honour's sentencing discretion.

35 Having held that the term of 11 years' imprisonment was manifestly excessive, I would have reduced the total effective sentence imposed on the appellant.

36 Even if I am wrong in concluding that the head sentence was manifestly excessive, I do not consider that the non-parole period was within range, when adequate weight is given to the appellant's excellent prospects of rehabilitation and the mitigating factors to which I have already referred. Although the fact that the minimum term amounted to 77% of the head sentence is not sufficient, of itself, to show that the judge erred, it does invite scrutiny. In a case in which the judge considered the rehabilitation prospects of the offender as being better than good, the non-parole period was too high.

37 For that reason, I would agree with Mandie and Harper JJA that the appellant should be required to serve a minimum term of seven years' imprisonment.

38 I have had the benefit of reading in draft the judgment of Neave JA and respectfully adopt her statement of the facts and circumstances relevant to this appeal.

39 I differ however with respect to her Honour's conclusion as to the sentence of 11 years' imprisonment imposed on the appellant. Having regard to the purposes for which sentences may be imposed[25] and the various matters to which a court must have regard,[26] I do not consider that the sentence is manifestly excessive. In particular, having regard to the appalling nature of this offence, I consider that the sentence imposed punishes the appellant in a manner which is just in all circumstances,[27] and manifests the denunciation by the Court of the type of conduct in which the appellant engaged.[28] I have come to that conclusion having regard to all the relevant considerations and in the circumstances but, in particular, having regard to the maximum penalty[29] and the nature and gravity of the offence,[30] but without disregarding the other matters identified by the Sentencing Act 1991, including current sentencing practices (without regarding such practices as necessarily determinative).

40 I think that the sentence imposed, whilst high, was within the range available to the sentencing judge.

41 However, I agree with Neave JA, for the reasons stated by her Honour, that the non-parole period should be reduced to seven years and the appeal allowed to that extent.

42 I too have had the benefit of reading in draft the judgment of Neave JA and respectfully adopt her statement of the facts and circumstances relevant to this appeal.

43 I however join with Mandie JA in being of the opinion that the sentence of 11 years' imprisonment imposed on the appellant is not manifestly excessive. He attacked his wife in her home. Whatever repressed forces may have been released by a snide comment which the victim made by phone to her mother, what followed was sheer brutality. A young daughter was but a few metres away, and an even younger daughter observed the horrific aftermath. The appellant then left his wife to die.

44 Counsel for the appellant described the victim's injuries as serious but not catastrophic. In my view, such a description is deeply insulting. Her quality of life has been irreparably diminished. There could not be a day in which her loss did not haunt her.

45 Conduct of this savagery must be denounced by the courts. Together with Mandie JA, I consider that the sentence imposed punishes the appellant in a manner which is just having regard in particular to the maximum penalty, to the nature and gravity of the offence, and to current sentencing practices. I respectfully adopt what Neave JA has said at [32] about this aspect of the considerations which this Court must take into account.

46 The Court was asked to conclude that the conduct of the offenders in the cases of Ali v The Queen[31] and DPP v Terrick[32] was more morally culpable than that of the appellant. While accepting that in some cases an exercise of that nature is appropriate, I am disinclined to venture upon that comparison in this case. It seems to me that it is invidious, when examining current sentencing practices, to attempt to compare one example of extreme violence, and one set of horrific consequences, with another. Although Hudson v The Queen[33] was concerned with a different problem, I think that the reasoning of the Court in that case, as reproduced at [31] of the judgment of Neave JA, is sufficiently closely analogous with that applicable here as to be relevant.

47 I agree with Mandie JA that the sentence imposed, whilst high, is within the range available to the sentencing judge. At the same time, I agree with the other members of the Court, and for the reasons given by Neave JA, that the non-parole period should be reduced to seven years and the appeal allowed to that extent.

[1] Director of Public Prosecutions v Ian Harvey Robbins (Unreported, County Court of Victoria, Judge Mullaly, 27 May 2011 ('Reasons') [5].

[14] [1982] HCA 55; (1982) 149 CLR 305.

[16] [2010] VSCA 182 ('Ali').

[17] [2009] VSCA 220; (2009) 24 VR 457 ('Terrick').

[18] The third offender, Stewart, was found guilty following a jury trial of recklessly causing serious injury.

[19] [2010] VSCA 32; (2010) 205 A Crim R 199 ('Hudson').

[21] [1988] HCA 14; (1988) 164 CLR 465.

[22] [1987] HCA 46; (1987) 163 CLR 447, 451-452.

[23] Sentencing Act 1991, s 5(2)(a).

[24] Ibid s 5(2)(b).

[25] Sentencing Act 1991, ss 5(1) and (3).

[26] Ibid s 5(2).

[27] Ibid s 5(1)(a).

[28] Ibid s 5(1)(d).

[29] Ibid s 5(2)(a).

[30] Ibid s 5(2)(c).

[31] [2010] VSCA 182.

[32] [2009] VSCA 220; (2009) 24 VR 457.

[33] [2010] VSCA 332.