Shau v The Queen [2020] VSCA 252

1 Having had the benefit of full oral argument, and the advantage of reading the persuasive analysis within the reasons of Niall JA, I agree that the appeal should be dismissed.

2 As I observed when granting leave to appeal,[1] the seriousness of the offence of recklessly causing injury in this case 'is not only to be gauged by the injuries caused, but also the manner of their infliction[2] (in this case a protracted and very violent assault on a vulnerable victim)'.[3] Ultimately, giving full weight to the appellant's plea of guilty and other mitigating circumstances - notwithstanding that I consider the sentence on charge 1 to be stern - for the reasons given by Niall JA I am not satisfied that the sentence imposed for recklessly causing injury is manifestly excessive.

3 Similarly, although, had I been the sentencing judge, I would have been inclined to order less cumulation between the individual sentences,[4] in the end I am not persuaded that the degree of cumulation ordered was altogether outside the appropriate range; infringed the principle of totality; or led to a manifestly excessive total effective sentence. In those circumstances, the wholly conventional non-parole period imposed is unassailable.

4 In the early hours of 17 September 2018, during the trip home from his niece's first communion party, the appellant punched, kicked and stomped on his pregnant wife. Although the attack started in the car, which his wife was driving, it ended up

on the concourse of a service station. Much of the assault was captured on the CCTV footage of the service station. The cameras also caught the appellant reversing his car, and then driving it forward at speed into the service station shop where his wife had sought shelter. The car crashed through the glass wall of the shop, coming to a stop with a large part of the car inside the shop, and the counter area substantially destroyed. That conduct endangered the life of the console operator who had locked the doors of the shop to prevent the appellant from coming after his wife, who was then cowering behind shelving in the shop.

5 The appellant was arrested at the scene and remanded in custody. At the earliest opportunity, he pleaded guilty to one charge of recklessly causing injury, one charge of reckless conduct endangering life and one charge of failing to furnish a breath sample. The table below sets out the maximum prescribed penalty for each charge and the sentence that was imposed.

Indictable charges: 7 years, with a non-parole period of 4 years, 9 months. Summary charge: $1,500 fine.

All licences and/or permits cancelled, disqualified from obtaining any such licence or permit for 4 years from 16 May 2019.

6 The appellant appeals the sentence on two grounds,[8] which were argued together. Ground 1 asserts that the individual sentences imposed on charges 1 and 2, the order for cumulation made on charge 2 (two years), the resulting total effective sentence (five years) and the non-parole period fixed (three years, six months) are manifestly excessive. The second grounds asserts that the order for cumulation made on charge 2 offends the principle of totality.

7 The plea proceeded on the basis of the facts set out in the prosecution opening. The following account of the facts is taken from the reasons of Priest JA on the leave application, which I gratefully adopt.

8 At the time of the offending the appellant was aged 38 years. His wife, Yan Wah Eva Lee ('Lee'), was aged 32 years and was 18 weeks' pregnant. They married on 10 May 2017.

9 On 16 September 2018, the appellant and Lee attended a communion party for the appellant's niece, arriving at around 7.30 pm. The appellant began consuming alcohol - initially drinking beer before switching to straight whisky - while socialising with family and friends.

10 Throughout the evening, the appellant progressively became angry and argumentative. At around midnight, Lee observed the appellant, who was angry about something, standing in a circle with relatives who were attempting to calm him down. The appellant then walked outside, with some of his relatives attempting further to placate him.

11 Lee could see that the appellant was angry and had drunk too much. His breath smelled strongly of whisky. She convinced him to get into his car, and she started driving them home. During the drive, the appellant telephoned his mother. He seemed to have calmed down, and was joking and laughing. Shortly thereafter, however, his tone changed and he once more became angry. The appellant said something to Lee in Mauritian, his native language. Lee, however, could not understand him as she does not speak Mauritian. He then loudly told Lee to stop the car, which she did, pulling over into the emergency lane of the freeway. The appellant continued to speak to his mother on the phone.

12 After a short time, Lee asked the appellant if she could continue to drive home. He agreed. Lee was travelling at approximately 80 kilometres per hour - the speed limit was 100 kilometres per hour - when the appellant accused her of speeding and demanded that she slow down. Lee said that she was not speeding. The appellant said 'I don't fucking care'. Lee then pointed out a set of speed limit signs. The appellant reacted by saying, 'You're being a big woman arguing with me. You don't fucking argue with me! Do you understand?'. Lee did not respond. The appellant then began to hit Lee, striking her left shoulder and the side of her face with his right hand, saying, 'Do you understand?'. Lee, who was starting to feel pain, replied 'yes' so as to stop him hitting her.

13 The appellant then demanded that Lee give him his mobile telephone. She said that she did not have it. He then demanded her phone. Lee told him that her phone was in her bag in the back seat. The appellant demanded that she stop the vehicle and call his mother. He then berated Lee, saying 'you're a dumb cunt', 'a stupid fuck', and 'you're not worth anything even worth a baby [sic]'. The appellant continued to yell and swear at Lee. In order to have him stop, Lee called the appellant's mother and began crying. She told the appellant's mother that he was hitting her.

14 With a half closed fist, the appellant then punched Lee to the head and face. He took the phone and ended the call with his mother. The appellant then demanded that Lee call his mother again. When she refused, the appellant hit her with the back of his right hand to the left side. In an attempt to defend herself, Lee punched the appellant to the right side of his cheek with her left hand. The appellant became furious and began punching her repeatedly to the head and face. Lee felt blood coming from her nose and could see her hands covered in blood. The appellant then pulled Lee by the hair and pushed her head down between his knees. She felt pain and as though the appellant was going to pull her hair out.

15 The appellant let her go after Lee cried out, 'please let me go'. She sat back up and continued driving again. In the rear-view mirror, she could see that her face was covered in blood. The appellant demanded that she not exceed 50 kilometres per hour. Lee, however, was already travelling at 90 kilometres per hour. As a result, he began hitting her shoulder.

16 When the appellant demanded that she pull over again, Lee, terrified for her life, saw an opportunity to exit the freeway. She noticed a service station and drove towards it. The appellant again asked Lee to stop the vehicle and punched her repeatedly to the face and eyes, causing her contact lenses to fall out and resulting in her having blurred vision and dizziness.

17 Lee managed to pull into the service station and stop the vehicle. The appellant shouted at her to keep driving while still punching her repeatedly to the head. Lee shouted that she could no longer see or drive. She opened the door and ran towards the service station while screaming, 'help me, help me please'. The appellant exited the vehicle and approached Lee. He grabbed her hair and pushed her to the ground. The appellant then repeatedly smashed Lee's head into the ground, and punched and kicked her.

18 Footage captured on CCTV at the service station depicts the appellant grabbing and dragging Lee by the hair on at least two occasions; punching and striking her with his hands and fists, mostly in the region of her head, on at least seven occasions; and kicking and stomping her to the head, neck, shoulder and torso region on at least 19 occasions. Lee curled up into a ball to protect her unborn child and raised her hands to protect her face.

19 At one point, the appellant ceased his attack on Lee and returned to the vehicle. Lee used this opportunity to get up and run towards the service station doors. The service station attendant, Mani Keshidi ('Keshidi'), who had witnessed the attack, unlocked the doors to allow Lee inside. Once Lee was inside, Keshidi locked the doors to prevent the appellant from entering. Keshidi told Lee that the police had been contacted. The appellant then exited the vehicle and attempted to gain entry into the service station. CCTV footage shows the appellant pacing outside and banging on the glass.

20 The appellant returned to the vehicle and got into the driver's seat. The appellant reversed and aligned the car with the attendant's area of the service station where Keshidi was standing. He then accelerated at speed directly into the service station. The speed at which he did so was such that he mounted the kerb causing the steel bollards placed to protect the attendant's area to bend, and for half of the vehicle to become wedged inside the store.

21 Keshidi, who was standing less than one metre away from the glass window, was pushed by the force of the impact into the cupboards and debris. He managed to free himself and run out of the service station. The appellant got out of the vehicle and began walking towards Keshidi. Fearing for his safety, Keshidi ran away and waited for police to arrive. Keshidi sustained minor injuries to his elbow and ribs, but did not require medical attention.

22 Police arrived shortly afterwards, arrested the appellant and transported him to Box Hill Police Station. The appellant was argumentative, aggressive and uncooperative with police. Police requested that the appellant undergo an evidentiary breath test, which he refused (summary offence 8 - refusing to undergo a breath test).

23 On 17 September 2018, Lee was medically examined at the Emergency Department of the Monash Medical Centre, where she was found to have sustained injuries consistent with blunt force trauma. Later, on 20 September 2018, a forensic medical examination was conducted by a Senior Medical Officer at the Victorian Institute of Forensic Medicine. It was found that Lee had suffered many instances of blunt trauma, and blunt trauma with friction, to her head, arms and lower legs. Her injuries included:

• multiple cuts, abrasions and bruising to the right side of her face, including just under her right eye;

• large bruises to her right shoulder and upper arm over the lateral aspect, left arm and forearm and over her scapula and spine;

• the underside of her feet bilaterally had also sustained small bruises;

• abrasions to the skin over her left elbow and over both of her knees;

• bruises over the right side of her forehead and temple and bruises behind her right ear;

• a cluster of bruises over the left frontal scalp;

• bruising around the left upper and lower eyelid, bruises and an abrasion to the left side of her chin;

• sub-conjunctival haemorrhages on the lateral aspect of both eyes;

• bruising to the area between her nose and upper lip;

• bruising to her left chest, just above her breasts;

• abrasions on the knuckle area of her right index finger and outer aspect of her right wrist;

• a cluster of bruises on the outer aspect of her right shoulder;

• abrasions between the left index and middle fingers and over the middle knuckle of the left ring finger;

• bruising to the outer aspect of her left upper arm;

• a pattern of red bruises in parallel rows and columns on the front and inner aspect of her left upper arm;

• bruising on the inner aspect of the left upper arm close to the armpit;

• bruising to the outer aspect of the right calf, just below the knee;

• abrasions to her left, lower thigh and left knee; and

• an abrasion on the front of the left, upper calf and several small abrasions over the top of the left foot.

24 Having regard to the prosecution opening and the CCTV footage, the sentencing judge described the conduct as a 'brutal assault'.[9] In his Honour's view, the combination of the extensive injuries suffered by Lee placed charge 1 at 'the high end of offences relating to the causing of "injuries"'.[10] He observed that a 'full appreciation' of 'the degree of violence perpetrated' by the appellant against his five months' pregnant wife could only be obtained by watching the relevant CCTV footage.[11] It was 'all but miraculous that she was not far more seriously injured.'[12] Further, the judge considered that had Keshidi 'not moved to his right a split second before the impact ... he would have suffered grievous injuries.'[13]

25 The judge noted that the service station was closed to the public for four days while the damage caused by the appellant was repaired and the proprietors suffered income and stock losses, and the expense of repairing the store, of just under $94,000.[14]

26 Since his arrest, the judge noted, the appellant had been remanded in custody.[15] He had pleaded guilty at the earliest opportunity, at the first committal mention.[16] The plea had significant utilitarian value, and the appellant would receive a 'discount' on sentence by reason of it.[17] The appellant had also 'shown indications of some remorse', including in a letter addressed to the Court.[18]

27 The judge noted that the appellant was aged 38 years, and was born and raised in Mauritius.[19] He completed the equivalent of Year 11, and took classes in food preparation, before coming to Australia in 2002, where he completed courses in commercial cookery.[20] The appellant had enjoyed a relatively long and successful career in hospitality, and was working as a chef at the time of his offending.[21]

28 In 2008, the appellant gained Australian citizenship and married his former partner.[22] They separated in 2014 and divorced in 2015.[23] He married Lee in 2016.[24]

29 The appellant has prior convictions for being drunk in a public place and for assaulting police in November 2004.[25] Since the convictions occurred some 14 years earlier, the judge said that he would sentence the appellant on the basis that he had been a person of good character, save for the conduct on the morning of 17 September 2018.[26] The judge also noted several character references that had been tendered, although he did 'not place great weight' on them.[27]

30 A clinical neuropsychotherapist, Mr David Ball, in a report dated 26 October 2018, took a history from the appellant, who said that he had started drinking alcohol at the age of 13, but that his consumption was 'mostly moderate'.[28] Mr Ball considered that, on the basis of his self-reporting, the appellant did not satisfy the criteria for 'alcohol use disorder'.[29] The appellant did, however, satisfy the criteria for a 'mild cannabis use disorder', and Mr Ball thought that the appellant 'presented as symptomatic for intermittent explosive disorder, sudden emotional dysregulation or explosive rage.'[30]

31 Based on his viewing of the CCTV footage, the judge expressed the view that the level of the appellant's intoxication was 'uncertain'.[31] The appellant told police during the record of interview that his last recollection of the party was that he was drinking with his uncle and cousin, and sitting with his wife and chatting. The judge was 'unable to say' whether this was 'accurate or whether it [was] a conscious attempt on [the appellant's] part to deny knowledge of, or to disown [his] behaviour on that night'.[32] Lee had given evidence on the plea - the judge said he treated it with 'some caution' - and had stated that there had been no earlier instances of domestic violence.[33] She said that the appellant was drunk at the time of the offending and she had never seen him like that before. Ultimately, the judge concluded:

On balance, I do accept that you were probably intoxicated to an extent on the morning in question, but I consider that the level of intoxication was not such as to be visually apparent from viewing the CCTV films.

I am not satisfied that your state of intoxication should be viewed as a mitigating factor in relation to your offending. Nor am I satisfied that you have a history of domestic violence associated with alcohol in the sense that your consumption of alcohol that night ought to be regarded as an aggravating factor.[34]

32 The judge also thought that there were several other aggravating factors:

Firstly, the offending occurred in the context of domestic violence. ...

Secondly, your wife, to your knowledge, was five months' pregnant at the time.

Thirdly, your offending was not some brief or impulsive loss of control. It was a lengthy, repetitive and violent bashing of a woman who was considerably smaller and of much lesser strength than you. She was the softest of targets for your aggression.

You must have been aware of the likelihood of injury to her. As previously said, it is something of a miracle that she was not very seriously injured.

You must have been aware that she would be terrified as a consequence of your attack upon her and terrified of the serious risk of injury to her and to her unborn child.[35]

33 As noted, the judge found that there was some degree of remorse and that the prospects of rehabilitation were reasonable if the appellant abstained from alcohol.[36]

34 I note that before the judge, the appellant had submitted that a combined community correction order ('CCO') and term of imprisonment was appropriate. A report from Corrections Victoria, dated 8 May 2019, assessed the appellant as suitable for a CCO. In this Court the submission made below was not renewed and nothing further need be said about it.

35 The appellant's submissions focused on the sentence imposed on charge 1 and on the degree of cumulation imposed on charge 2. He submits that, notwithstanding the serious and brutal nature of the attack on Lee - which he acknowledged - when regard is had to his remorse, early plea of guilty, good work history, insight into his offending, prospects for rehabilitation and the maximum sentence imposed by the Parliament, the sentence on charge 1 is manifestly excessive. He submits that these moderating features find no, or inadequate, reflection in the sentence of three years' imprisonment.

36 In oral submissions, counsel emphasised that the sentence imposed on charge 1 was a significant proportion of the statutory maximum, the behaviour was an aberration given his wife's evidence that there had been no history of domestic violence or alcohol abuse on her husband's part, and the appellant had demonstrated remorse.

37 In relation to the order of cumulation of two years, counsel submitted that the offending was temporally connected with that caught by charge 1 and arose out of the same aberrant behaviour and was effectively one criminal episode.

38 The respondent submitted that the conduct giving rise to charge 1 was an extremely serious, brutal example of the offence and was 'entirely senseless'. It occurred in a domestic relationship, in breach of trust, and resulted in a significant number of bruises, abrasions and cuts to Lee's face, head and body. The respondent submitted that the judge took into account the matters in mitigation advanced on behalf of the appellant and the sentence imposed on charge 1 was well within the range open to the judge.

39 The respondent submitted that the order as to cumulation was well open to the judge in circumstances where - although there was a relatively short amount of time between the offences - they were two distinct episodes of serious criminal conduct involving different victims.

40 The principles that this Court must apply in order to resolve an appeal are well established and clear. This Court cannot intervene on the basis that the sentence is manifestly excessive unless it is persuaded that the sentence imposed is wholly outside the range of sentences that was available to the judge in the sound exercise of his discretion.[37]

41 The appellant pleaded guilty to one charge of recklessly causing injury for which the maximum prescribed penalty is five years' imprisonment. The maximum penalty provides a 'sentencing yardstick' that represents the legislature's assessment of the seriousness of the offence.[38] Careful attention must be given to the maximum penalty;[39] it invites comparison between the case before the court and the worst category of the offence which is so grave that it warrants the imposition of the maximum penalty for that offence.[40] Of course, the maximum penalty does not represent a starting point from which deductions are to be made, having regard to the matters relevant to penalty such as the gravity of the offence, a plea of guilty, remorse and rehabilitation.

42 With an eye on the maximum penalty, it is necessary to have regard to the objective gravity of the offending and the matters which are personal to the appellant. In assessing the seriousness of a charge of recklessly causing injury, a court must inevitably consider the type, severity and extent of the injury caused. The physical and mental consequences of the offender's conduct on the victim will generally assume significance in any assessment of the objective gravity of the offending.

43 In the present case, the bruising and abrasions sustained by Lee, considered individually, were neither especially grave nor long lasting injuries. They were of a kind that might be expected to heal relatively quickly. However, the fact that they covered such an extensive part of her body, including her head, face, both arms and both legs, reveals an assault involving multiple blows. Taken together, the injuries were the outcome of a very serious assault.

44 Further, any assessment of the gravity of the offending cannot be confined to its physical sequelae. The CCTV footage shows the brutality of the attack. It was cowardly, and continued when Lee was prone on the concrete surface. The senseless violence inflicted and the enormous disparity in strength and power between the appellant and Lee is starkly revealed. The kicks and stomps to her head were executed with a high degree of force. Understandably, the assault induced terror on the part of the victim. In her statement to police, which she confirmed in evidence on the plea, Lee said that on the night she was extremely fearful for her life and thought that the appellant was 'definitely going to kill [her]'. It caused her to scream for help and to flee, seeking shelter in the service station building.

45 The CCTV footage is confronting. However, the attack is not made worse because it was filmed, and it is important that the images are not given undue weight. Nevertheless, they allow an appreciation of the severity of the attack and the vulnerable position in which Lee was placed.

46 Compounding, to a significant degree, the seriousness of the offence is the fact that it occurred within the context of a family relationship. That fact had two relevant consequences. First, it meant that the offending arose in a relationship of trust. Lee was five months' pregnant and ought to have enjoyed protection and care from her husband. The breach of trust necessarily made the offending more serious.

47 Next, the courts must respond to the blight of family violence by imposing punishment that denounces the conduct and adequately addresses general deterrence. Unlike in many cases, there was no basis in the evidence to suggest that there had been earlier incidents of violence. In her evidence, Lee said that the appellant had never assaulted her before. For that reason, the conduct was, on the evidence, an aberration. Lee expressed support for her husband on the plea. However, there remains a very high public interest in punishing family violence, both for its denunciatory and deterrent effect, even where the victim seeks leniency and incarceration would place great pressure on the domestic relationship.

48 It was of course necessary for the judge to weigh a number of factors that served to moderate the sentence. Most importantly, the early guilty plea, with its utilitarian value. Although the prosecution case was overwhelming, the plea spared both Lee and Keshidi the trauma and stress of a trial, and the community the expense. The judge was somewhat equivocal on the question of remorse, observing that the plea was 'probably ... an indication of some remorse' and that he had more recently 'shown indications of some remorse.'[41] Equally, while accepting that the appellant was 'when sober ... a person of good character' with 'reasonable' prospects of rehabilitation, the judge said that it depended on his preparedness and ability to abstain from alcohol.[42]

49 For someone who, apart from an old prior conviction of little relevance, had no prior convictions, and who had no history of domestic violence, the assault on Lee stands out as a terrible and unexpected aberration. A sentence of three years, on a maximum of five years, on a plea of guilty, is obviously stern. However, there can be no fixed or established 'discount' for the plea of guilty and, with a maximum of five years, there may often be a degree of compression in the range of sentences for offending of this kind.

50 Accommodating all of the relevant factors, both aggravating and moderating the sentence, may result in a sentence that represents a high proportion of the maximum, even on a plea of guilty. For example, in Phillips v The Queen,[43] this Court upheld a sentence of four years on a maximum penalty of five years on a plea of guilty to recklessly causing injury. Phillips was a very different case to the present case and involved shooting at police officers in circumstances that showed very little by way of mitigation. But it serves to demonstrate that it is no easy thing to try to dissect a sentence to see whether there has been sufficient weight given to a plea of guilty. This Court must look at all of the factors and assess whether the sentence imposed is wholly outside the range available to the judge in a proper exercise of the sentencing discretion.

51 Ultimately, I am unable to regard it as wholly outside the range. In my opinion, this was a serious example of the offence and the sentence of three years' imprisonment on charge 1 was open to the judge.

52 The next aspect of the submission that must be addressed is whether the cumulation of two years resulted in a total effective sentence that is manifestly excessive. In making an order for cumulation, the judge was required to arrive at a sentence that adequately addressed the total criminality. The appellant focussed on the fact that the two offences occurred within a short time frame and arose out of the same aberrant behaviour.

53 The conduct that comprised charge 2 involved separate and distinct criminal conduct that was directed to Keshidi. Keshidi was at work and had no connection to either party. When he saw Lee being assaulted, he allowed Lee into the shop to shelter from the attack, locked the appellant out to protect himself and Lee and informed Lee that police had been contacted. As the judge found, the appellant drove the vehicle directly at Keshidi and, had Keshidi not moved a split second before impact, he would have suffered grievous injuries.

54 It is clear that the appellant targeted Keshidi because he had locked the appellant out and was preventing him from continuing to attack his wife. To drive the car at speed into the service station attendant's area, directly at Keshidi, was extremely dangerous and terrifying. It was substantial criminal conduct that needed to be reflected in the sentence. Keshidi was not simply an innocent victim caught up in the maelstrom encompassed by charge 1 - he was the victim of a discrete criminal act that was independently very serious. Indeed, given the inherent danger in driving the car through the glass wall of the shop directly at the attendant, the criminality involved in each offence was of a similar order, and the judge imposed the same sentence on each. It might be thought a very close thing as to which of the two offences ought to be treated as the base sentence. Whichever was chosen, the other sentence called for a substantial degree of cumulation.

55 There can be no suggestion that the sentence of three years' imprisonment on charge 1 was not open to the judge. Although the order for cumulation resulted in a long term of imprisonment, I am not persuaded that there was any error. The total effective sentence of five years is not manifestly excessive. The non-parole period chosen by the judge was well open to him.

[1] Shau v The Queen (Unreported, Court of Appeal, Priest JA, 7 May 2020), [40].

[2] Phillips v The Queen [2017] VSCA 313, [54].

[3] Viewing the CCTV footage, which I have done, is a harrowing experience. To see the applicant punch his wife several times is bad enough. But to then see him viciously stomp on her head repeatedly is sickening and acutely distressing.

[4] In the circumstances, it is unnecessary to consider whether it was appropriate that the sentence on charge 1 be the base sentence. See R v MDB [2003] VSCA 181, [14].

[5] Crimes Act 1958 s 18.

[6] Ibid s 22.

[7] Road Safety Act 1986 s 49(1)(e).

[8] Priest JA granted leave to appeal on both grounds on 7 May 2020.

[9] DPP v Shau [2019] VCC 688, [33] ('Reasons').

[37] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[38] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 494 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); [2013] HCA 31.

[39] Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25.

[40] R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 265-6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48.

[43] [2017] VSCA 313 ('Phillips').