Sianas v The Queen [2016] VSCA 84

1 I will ask Priest JA to deliver the first judgment.

2 Dean Sianas, the applicant, was born on 21 February 1996. He is now aged 20 years, but was aged 18 when he committed serious offences on 23 September 2014.

3 On 28 August 2015, the applicant pleaded guilty in the County Court to intentionally causing serious injury,[1] charge 1, and armed robbery,[2] charge 2. The judge sentenced him on 26 November 2015 to be imprisoned for 20 months on charge 1 and for 12 months on charge 2. Two months of the sentence on charge 2 was ordered to be served cumulatively with the sentence on charge 1, leading to a total effective sentence of 22 months' imprisonment. The judge also ordered the imposition of a community correction order ('CCO') on both charges, the CCO to commence upon the applicant's release from prison and to endure for three years. Among the conditions attached to the CCO, the applicant is required to perform 150 hours of community work;[3] undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency;[4] and undergo mental health assessment and treatment, that may include psychological, neuropsychological or psychiatric treatment in a hospital or residential facility;[5] and participate in programs or courses to address factors relating to his offending behaviour.[6]

4 The applicant seeks leave to appeal against the sentence on a single ground:

1. The Learned Sentencing Judge erred in sentencing the Applicant to adult imprisonment.

Particulars

(a) The Learned Sentencing Judge erred when assessing the Applicant's engagement with Youth Justice and his prospects of rehabilitation;

(b) The Learned Sentencing Judge erred in his consideration of the status of the Applicant as a young offender and whether a Youth Detention Order was open on the facts if this case; and

(c) In the alternative, the imposition of adult imprisonment was manifestly excessive.

5 For the reasons that follow, I would refuse leave to appeal.

6 It is necessary to describe the applicant's offending, which was very serious.

7 In summary, the offending the subject of charge 1 involved the applicant - completely unprovoked - kicking a 17 year old youth, William Rait ('WR'), in the head; striking WR to the forehead with a beer bottle (causing it to break); and thrusting the broken bottle into WR's chin, below his lip.[7] As a result, WR suffered a jagged injury to his forehead, and a laceration extending from his lip downwards, these injuries causing facial scarring.

8 The offending the subject of charge 2 involved the applicant picking up another bottle; putting another 17 year old youth, Chris Mangos ('CM'), in a headlock, while threatening him with the bottle; and demanding and stealing money from CM.

9 WR, CM and three friends, arranged to meet in the early evening of 23 September 2014 at a park in Hawthorn, popularly known as 'Rocket Park'. They sat at a table drinking.

10 At about 8.50pm, two of the group left the table to use playground equipment, leaving WR, CM and another youth, Alex Bishop, at the table. The applicant approached the group at the table and asked if they had any drinks they could give him. The group said they did not.

11 The applicant then approached WR, and said, 'Give me your fucking money'. WR replied, 'Fuck off'. The applicant then kicked WR to the head, prompting the applicant's brother to say, 'What the fuck are you doing?'. Undeterred by his brother's apparent appeal to reason, the applicant picked up a 'longneck' Heineken beer bottle from the table, and, holding it by the neck, struck WR to the forehead, causing the bottle to break. He then thrust the broken bottle into WR's chin, below the lower left lip. WR started to bleed immediately. He lost hearing and felt like his head 'exploded'.

12 After a short ensuing wrestle between the applicant and WR, the applicant then picked up another Heineken beer bottle and moved toward CM, who was still sitting at the table. He put CM in a headlock with one arm, and threatened him with the beer bottle held in the other. He yelled for CM to give him his money, and told CM he would be 'next'. CM handed over his wallet, which contained $30 cash and some cards.

13 In the attack, WR suffered a four centimetre jagged injury to his forehead, and a three centimetre laceration from the left lower corner of his lip, extending downwards. Both injuries required repair by a plastic surgeon, but he will suffer lifelong scarring. WR spent three days in hospital. In his victim impact statement, WR spoke of ongoing embarrassment occasioned by his physical scarring, and the anxiety and loss of confidence he experiences as a result of the attack.

The submission that the judge erred when assessing the applicant's engagement with Youth Justice and his prospects of rehabilitation

14 Counsel for the applicant submitted in this Court that the sentencing judge made two material errors of fact.

15 The first error of fact related to the applicant's engagement with Youth Justice.

16 Police arrested the applicant on 7 October 2014. He was remanded in custody on 8 October 2014, until being released on bail on 15 October 2014, subject to strict conditions under the Youth Justice Supervised Bail Program (under the auspices of the Department of Human Services). Whilst on bail, he was supervised by Ms Jasmin Karikari-Yeboah, a Youth Justice case worker with the Department of Human Services.

17 Ms Jasmin Karikari-Yeboah gave evidence on the plea. She provided two reports relating to her supervision of the applicant on bail, the first, Exhibit 1, being dated 7 January 2015; and the second, Exhibit J, being dated 19 November 2015. In the course of her evidence, she said that at the time that she wrote the first report, the applicant had attended all appointments made for him and was complying with all requests made of him. She also gave evidence that from January 2015, to the time of her evidence in August 2015, the applicant had attended all scheduled appointments. He had also engaged in a number of sessions with a psychologist, and had undertaken drug and alcohol assessment. During the relevant period, the applicant had been 'compliant' and had 'engaged in a positive manner' with her. They had a number of sessions covering a range of different topics. Five sessions related to 'anger management counselling'.

18 In her first report, Ms Karikari-Yeboah indicated that the applicant had attended 21 sessions with her; but, in her second, recorded that the applicant had 'attended all 78 scheduled Youth Justice appointments'. Counsel for the applicant submitted in this Court that the judge had misapprehended the effect of Ms Karikari-Yeboah's evidence, however, in that he did not appreciate that the applicant had attended the 78 sessions adverted to in Exhibit J, rather than the 21 sessions referred to in the earlier report. In his reasons for sentence, the judge said:

You have fortunately since the time of these offences apparently been indulging in counselling. It was the view of Ms Karikari-Yeboah that you had taken a positive attitude, that you had accepted the seriousness of the criminal behaviour that you had been involved with, that you had attended some 21 of the scheduled youth justice appointments and your engagement had been positive.

19 Counsel for the respondent conceded the judge's error. It was accepted that the evidence before the judge was that the applicant had indeed attended 78 appointments with Youth Justice whilst on bail, not 21 appointments as the judge remarked. But it was submitted that the judge's mistake was not a material error vitiating the sentence imposed; and that 'it is not reasonable to believe that the sentencing judge would or might have passed a lesser sentence had the error not been made'.

20 The second factual error said to have been made by the judge related to the time at which the applicant had first engaged with a psychologist, Dr Angela Wright.

21 In his reasons for sentence, the judge observed:[8]

It is quite obvious that you were initially referred to Dr Wright prior to these offences taking place, and Dr Wright talks of you being involved in four sessions in the period July 2015 through to August 2015 in so far as treatment for your long-term anxiety and psychological support.

However unfortunately whatever happened in those sessions did not assist you, because as is obvious, you then went and committed this criminality. However I am told that you have continued to be part of psychological interventions overseen by Dr Wright, albeit that I do not have any further update.

22 Once again, the respondent conceded that the judge erred in finding that the offences occurred after the applicant had attended four counselling sessions with the psychologist. It was submitted, however, that although that error was 'significant', it was not a 'material' error, since it is apparent from the sentencing remarks that the judge did not place 'great weight' on this erroneous finding.

23 Plainly, as the respondent fairly conceded, the judge was wrong in the two respects submitted by the applicant's counsel. The applicant had attended 78 sessions with Ms Karikari-Yeboah, not 21. Moreover, the judge erred in finding that the offences occurred after the applicant had attended four counselling sessions with the psychologist. The present offending occurred on 23 September 2014, but the applicant did not have his initial consultation with Dr Wright until 7 July 2015. (He had four further sessions throughout July and August).

24 In my view, however, these errors are of little significance. The judge understood - and accepted - that the applicant's interaction with Youth Justice and the services provided showed that he 'had a positive reaction perhaps for the first time in [his] life'. Thus the errors, such as they were, can only have had minimal impact on the judge's overall assessment of the applicant's efforts since his release on bail, and concomitantly his prospects of rehabilitation. Certainly the errors were not of such a nature as to unravel the exercise of the sentencing discretion.

The submission that the judge erred in his consideration of the applicant's status as a young offender and whether a youth justice centre order was open

25 The applicant's counsel submitted that, given that the applicant is under the age of 21 years, he is a 'young offender' within the meaning of s 3(1) of the Sentencing Act 1991 ('the Act'). Importantly, s 32(1) of the Act provides that:

... if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order ... if it has received a pre-sentence report and -

(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or

(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

26 And s 32(2) further provides that:

In determining whether to make a youth justice centre order or a youth residential order, a court must have regard to -

(a) the nature of the offence; and

(b) the age, character and past history of the young offender.

27 In sentencing the applicant, the judge observed:

I make it very clear that all the matters that have been referred to by your counsel, and your youth, are certainly matters that I take into account by way of mitigation in this case. I accept [defence counsel's] reference to the important case of [Mills[9]] and the relevance of the principles referred to therein, and his reference to [Winch[10]], and to [Dix[11]], which he handed to me in his summation.

However, as was pointed out in both Winch and Dix, specific deterrence, general deterrence and just punishment are very important considerations in crimes of this sort. The principle of social acknowledgement of the rights of the victim, as referred to in [Toomey[12]], is also relevant here.

28 In stating his conclusions for rejecting detention in a youth justice centre as being appropriate, the judge added:

Mr Sianas, I must tell you that after anxious consideration I have determined that owing to the nature of your offences in the sense as referred to by Callaway JA,[[13]] your character and past history, in particular as referred to in s.32(2) of the Sentencing Act 1991, that despite your classification as a young offender, and the potential for some undesirable influences in adult prison, I have concluded that it is not appropriate to order you to serve a period of detention in a youth training centre.

The totality of the criminality to lead me to a conclusion which I think is inescapable. You must and will serve your sentence for these crimes in an adult prison.

29 For reasons that I will shortly discuss, the judge was, in my view, correct to regard general deterrence, specific deterrence and just punishment as being very important factors animating the exercise of the sentencing discretion, despite the applicant's status as a young offender. In my opinion, the nature of the offences, and the applicant's past history, rendered the option of detention in a youth justice centre insufficiently punitive.

The submission that the imposition of adult imprisonment was manifestly excessive

30 Counsel for the applicant submitted that, pursuant to s 32(3)(b) of the Act, the sentencing judge could have imposed a sentence of detention in a youth justice centre of up to three years. So far as 'actual confinement' was concerned, the judge imposed a sentence of 22 months (although, of course, it was coupled with a CCO of three years' duration). Thus, so it was submitted, the judge did not find either that the offending was so grave, or the applicant's record so bad, that 'actual confinement' of up to three years was an inadequate sentence. The decision to impose imprisonment, however, in preference to detention in a youth justice centre, rendered the sentence manifestly excessive.

31 The prosecution's submissions to the sentencing judge included the concession that a 'term of youth justice detention' was 'within the range available to the court'. In this Court, however, it was submitted that the sentences of imprisonment imposed on the applicant, followed by a CCO, was an appropriate sentence given, first, the objective seriousness of the offending; secondly, the need for specific deterrence; and, thirdly, the need for general deterrence.

32 It must be said that the applicant has a disturbing prior history, albeit limited to the Children's Court. Thus, on 14 June 2013, he was dealt with for robbery, recklessly causing injury and assault with a weapon, arising out of two incidents. The first incident occurred on 18 November 2011, and involved robbery and assault with a weapon. The second occurred on 9 June 2012, and involved another robbery and recklessly causing injury. In the first incident, the victim was walking across a pedestrian crossing outside Doncaster shopping complex when he was confronted by three youths. He was robbed of approximately $400, and was hit on the head with a large beer bottle, causing him minor injuries. In the second incident, the victim was confronted in the street by three youths who asked for money. He was threatened with a metal pole, pushed, and then punched in the face multiple times, causing him to fall to the ground. The assault on the victim continued whilst he was on the ground being kicked. He dropped his wallet and one of the offenders removed $5 from it. The victim received multiple cuts to the mouth and head that required hospital attendance. For these offences, the applicant received probation.

33 On 11 July 2014, the applicant was once more before the Children's Court for affray, assault, assault with a weapon, hindering and resisting police, possessing a controlled weapon and other offences. Again, there were two incidents of criminality involved. It seems that the first incident occurred in the vicinity of the Hawthorn Hotel. Two groups of males were involved in an altercation inside the hotel. Security ejected one group of males from the hotel and asked the other group to remain in the hotel until the other group cleared the vicinity. When the victims' group left the hotel, a black vehicle stopped on the side of the road and three males exited the vehicle and began assaulting the victims' group. Three victims were injured. Two were taken to Box Hill Hospital with serious, but non-life threatening, facial injuries. The second incident was in the vicinity of Flinders Street Station. The applicant and two other youths were checked by authorised officers. A physical confrontation occurred between the applicant and two of the officers. These offences constituted a proven breach of the probation order of 14 June 2013, but the probation order nonetheless was confirmed. With respect to the offences that brought him before the court, the applicant was released on probation for a further period, and was required to report to Ms Karikari-Yeboah and to attend any rehabilitation courses or support services as directed by Youth Justice.

34 Although, of course, no principle of sentencing requires that more severe sanctions be administered to those who reoffend, nonetheless an adverse criminal history may be taken into account as an indicator of an offender's moral culpability, his or her prospects of rehabilitation, his or her dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[14] In this regard, it is noteworthy that the offences which are the subject of the present application were committed whilst the applicant was subject to the probation imposed on 11 July 2014.[15]

35 In Azzopardi[16] - which involved applications by three 19 year old males for leave to appeal against sentence on numerous counts of armed robbery, attempted armed robbery, attempted robbery, intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury and common law assault - Redlich JA observed:[17]

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth.[18] But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.

36 And in Lawrence,[19] which Redlich JA cited, Batt JA (with whom Winneke P and Nettle JA agreed) observed in relation to an offence of intentionally causing serious injury - which included stabbing the victim with a broken beer bottle - perpetrated by a 20 year old male:[20]

Further, as the cases[21] make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright,[22] take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the respondent was in any event only on the borderline of youthfulness and moreover was not by any means a first offender. ...

37 Although the applicant's relative youth and positive steps towards rehabilitation were important, in my view the applicant's offending was so serious that considerations of general deterrence, specific deterrence and just punishment demanded the imposition of a sentence of imprisonment. The judge reflected youth and prospects of rehabilitation in a sentence of imprisonment of relatively modest length, coupled with a CCO.

38 There is one further matter which I should mention. During the hearing of the application, in the event that the sentencing discretion was reopened, the applicant also sought to rely on material which showed that the applicant suffered a severed tendon in his right hand as a result of the bottle he was holding shattering during his attack on WR. He has undergone two surgical operations to try to reconstruct the tendon, and will require a third. The applicant does not have a full range of motion in the hand, and has had to wear a brace in an attempt to ameliorate that aspect. He cannot fully close his hand, and has to stretch it for 30 minutes each morning. Holding tools is difficult. The injury is a daily reminder of what he did.

39 I am not persuaded that there has been any error which would justify this Court's intervention. But in any event, although it may be acknowledged that the applicant's physical injuries have had a noticeable impact on his daily life and will remain a practical reminder to him of his crimes, and further acknowledging that it is proper to take the injuries into account as a matter going in mitigation,[23] in the circumstances I do not regard this factor as operating in such a way as to significantly mitigate the sentence imposed. The mitigatory effect on sentence of a

self-inflicted injury caused in the commission of an offence will vary according to the particular circumstances of any given case. In the present case, when he wielded the beer bottle as a weapon, the applicant must have foreseen that not only was he placing WR at risk of severe injury, but he was himself inviting severe injury. That the prospect of serious injury was realised - and that injury might be seen as a form of extra-curial punishment - cannot mitigate the applicant's sentence to any significant extent.

40 The submission that imprisonment rendered the sentence manifestly excessive is without substance.

41 For the foregoing reasons, the application for leave to appeal must be refused.

42 I agree with Priest JA for the reasons that he has given, that leave to appeal should be refused.

43 I would only add that even if the incidental errors which the applicant has identified in the sentencing judge's reasons were to be regarded as material, there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence having regard to the gravity and viciousness of the offending and the applicant's criminal history.

44 Accordingly, leave to appeal should be refused pursuant to s 280(1) of the Criminal Procedure Act 2009.

45 The orders of the Court will be, firstly, that the Indictment E 13340020 will be amended to allege Charge 2 occurred on 23 September 2014.

46 Second, the application for leave to appeal against sentence be refused.

[1] Crimes Act 1958, s 16. The maximum penalty is 20 years' imprisonment.

[2] Crimes Act 1958, s 75A. The maximum penalty is 25 years' imprisonment.

[3] Sentencing Act 1991, s 48C.

[4] Sentencing Act 1991, s 48D(3)(a) and (b).

[5] Sentencing Act 1991, s 48D(3)(d) and (e).

[6] Sentencing Act 1991, s 48D(3)(f).

[7] On the hearing of this application, counsel for the applicant submitted that the evidence did not support the contention that the applicant thrust the bottle into WR's chin. It is enough to observe that the prosecutor opened on the basis of a second 'thrusting' strike to the chin, and there was no attempt by defence counsel to controvert that aspect.

[9] R v Mills [1998] 4 VR 235.

[10] Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 665.

[11] DPP v Dix [2015] VSCA 118.

[12] DPP v Toomey [2006] VSCA 90.

[13] Viz. R v Tsiamis and Kastanis (Unreported, 21 May 1997, Vic CA).

[14] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).

[15] See R v Gray [1977] VicRp 27; [1977] VR 225, 2289.

[16] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43.

[19] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125.

[21] Such as R v Thompson (unreported, Court of Appeal, 21 April 1998) at pp 7-8; R v Wright [1998] VSCA 84 at [1], [5] and [6]; R v Teichelman [2000] VSCA 224 at [20]; R v Howarth [2000] VSCA 94; (2000) 1 VR 593 at 608, [51]; and R v Hennen [2004] VSCA 42 at [24]. When considering the sentences upheld as not being manifestly excessive in those cases, regard must be had to the maximum penalty applicable at their respective relevant dates and to the fact that they were appeals or applications by offenders.

[22] R v Wright [1998] VSCA 84, [6].

[23] R v Barci (1994) 76 A Crim R 103; Howton v The Queen [2012] VSCA 281; (2012) 62 MVR 207; Pasznyk v The Queen (2014) 43 VR 169; Milk v The Queen [2015] VSCA 237.