Tancredi v The Queen; Pamvouxoglou v The Queen [2010] VSCA 157

2 On 8 June 2010 the Court made orders allowing each appeal. It re-sentenced Tancredi to a term of 3 years' imprisonment with a non-parole period of 2 years and Pamvouxoglou to a period of 2 years' imprisonment with a non-parole period of 14 months.

3 The following are the Court's reasons for so ordering.

4 The appellants relied upon the following grounds of appeal:

Tancredi

Ground 1 - The learned sentencing judge erred in finding that, and imposing sentence on the basis that, the Appellant had "poor prospects of rehabilitation".

Ground 2 - The learned sentencing judge failed to accord any, or sufficient weight to the Appellant's prospects of rehabilitation.

Ground 3 - The learned sentencing judge erred in failing to find as a fact that, and thereby impose sentence upon the factual basis that, the Appellant and the co-Appellant did not foresee the full consequences of their actions, namely the serious brain injury sustained by the victim, Mr Carfaro, and the consequences of that injury.

Ground 4 - The learned sentencing judge failed to accord any, or sufficient weight to the Appellant's plea of Guilty.

Ground 5 - The sentence imposed (including the non-parole period fixed) is, in all the circumstances of the case, manifestly excessive.

Pamvouxoglou

Ground 1 - The learned sentencing judge erred in failing to find, and in failing to sentence on the basis, that the Appellants did not foresee the full consequences of their actions, namely the serious brain injury suffered by the victim.

Ground 2 - The learned sentencing judge erred in reasoning that the imposition of a wholly or partly suspended sentence was not open on the basis that such a disposition would not properly take into account the maximum penalty of 15 years imprisonment.

Ground 3 - The head sentence and the non-parole period are manifestly excessive and the failure to impose a wholly or partly suspended sentence is manifestly wrong [particulars then supplied].[1]

5 The circumstances of the offending were not in issue on the appeal and were set out by the learned sentencing judge. In essence, on Friday 15 June 2007, at about 1.20 am the victim was making a telephone call at a public phone box located in a busy part of Moorabool Street, Geelong. He was, at this point, severely intoxicated, being later found to have a blood alcohol level of 0.27 per cent.

6 The appellants had spent the night together, socialising with a group of friends at two different hotels over a period of about 4 hours. Both admitted to drinking on the evening, although the learned sentencing judge sentenced them on the basis that they were not intoxicated (in accordance with a submission accepted by the prosecution the plea).

7 At the relevant time, the appellants had travelled in Pamvouxoglou's car in order to get some food at a takeaway shop in Moorabool Street. After exiting the car and walking towards the shop, the appellants passed the victim, who was then standing at a phone box. The learned sentencing judge described what occurred next as follows:

According to you, Tancredi, he kicked a can which landed about a metre away from you. Rather than ignoring this inconsequential conduct, which was not directed at you personally, you called out "What's the deal with kicking the can?" The victim was a stranger to you both and did not respond. You told police that as you walked past him he began yelling out and hitting the phone on the phone box. Again, instead of ignoring this, you provocatively demanded "What's your caper?" You then kicked the victim twice to his chest and punched him to his jaw - so hard and effectively that he collapsed onto the pavement. Whilst he lay there in a foetal position and moaning in pain, you, Pamvouxoglou kicked him twice to his "upper body", as it was described by an eye witness.

8 The sentencing judge had before him a statement by a crowd controller from a nearby club who said that the appellants 'were clearly hitting a person who was not able to fight back'.

9 After this attack, the appellants returned to Pamvouxoglou's vehicle and decamped, leaving the victim lying bleeding and unconscious on the footpath. Later, the appellants drove back to the scene. By this time, an ambulance and police were present, and the appellants drove off again.

10 The learned sentencing judge found that the impact of the assault upon the victim was 'horrendous'. He suffered a closed-head injury and was left with a serious brain injury as the result of bruising and bleeding to the brain. He suffered also soreness and swelling to the neck. He underwent emergency surgery in the Alfred Hospital where he remained for about 7 days. There followed six months of rehabilitation, involving weekly attendance at a rehabilitation centre. We note also that, by reason of his injuries and need for rehabilitation, the victim lost his job in the aftermath of the assault.

11 The victim continued to suffer physical symptoms for some time after the accident. They included tiredness, headaches, lethargy, sleep disturbance and a stiff sore neck. By the time of the plea, however, he appeared to have made a full recovery from his physical injuries. He had avoided permanent brain damage. On the other hand, according to his victim impact statement he continued to suffer from bouts of depressions, lacked self-esteem and felt robbed of the happiness and confidence he once had.

12 Having twice fled the scene of the offence, neither appellant gave himself up. Rather, some five days later, on 20 June, Tancredi went to the police. Apparently, he did so after he had spoken with a police officer who was a friend and who advised him to go to the police and confront the issue. Tancredi then gave an interview saying that he had come forward because he had a 'guilty conscience'. But he gave a false account, in which he said that he acted in self-defence - stating, among other things, that the victim had come before him with an angry look and a raised arm.

13 The following day Pamvouxoglou went to the police and was interviewed. He also gave a false account of what happened, which was materially the same as that given by Tancredi, and therefore suggestive of some degree of collusion. By that time, we add, the police had obtained the registration number of his vehicle from an eye witness.

14 Each appellant was charged with intentionally and with recklessly causing serious injury. There was a contested committal. The appellants pleaded not guilty to all charges. A number of eye-witnesses were cross-examined. The matter was then listed for trial. Following negotiations with the prosecution, the count of intentionally causing serious injury was not pursued, and both pleaded guilty to the offence of recklessly causing serious injury.

15 The s 582 applications for leave to appeal came before Nettle JA on 19 February 2010. His Honour concluded that ground 3 (manifest excess) was reasonably arguable in respect of Pamvouxoglou. He considered it reasonably arguable that, if Pamvouxoglou's application succeeded on that ground, the sentencing discretion might consequentially be re-opened in respect of Tancredi. For that reason, his Honour granted Tancredi leave to appeal. His Honour delivered extensive reasons rejecting the other grounds of appeal relied upon by each of the appellants. As we have concluded that both appeals should be allowed on the ground of manifest excess, it is unnecessary to consider those other grounds.

16 In his reasons, the learned sentencing judge expressly referred to that part of the judgment of Redlich JA in DPP v Fevaleaki[2] where the distinction between foresight of serious injury and foresight of actual injury was discussed.[3] For the avoidance of doubt, and to make clear the basis upon which the re-sentencing is to take place, we consider the appellants should be treated as having had foresight of serious injury, but not of brain injury of the gravity actually sustained by the victim. The appellants circumstances may therefore be contrasted with cases where the offender has foresight that his conduct will result in maximum harm to the victim.[4]

17 It is necessary to set out in some detail the personal circumstances of the appellants.

18 Counsel for Tancredi pointed to a number of a number of factors in mitigation, all of which were subject to a positive finding by the sentencing judge. On the plea, the sentencing judge had received character evidence from various long-time personal and business colleagues of Tancredi which his Honour described as 'glowing'. These included the fact that he was a hard and productive worker who operated a successful and profitable business, and that he was honest, reliable and had a respected work ethic. He could expect support upon his release - there being evidence that he had a stable home life, was engaged and had built a marital home. He had a close relationship with his father and friends, who provided support throughout the plea. Counsel both on the plea and appeal emphasised his skill as a race car driver and his charity work, which were said to indicate a positive future upon his release.

19 It was also submitted that Tancredi was remorseful for his conduct. He pleaded guilty, and had gone to the police of his own accord. He was a relatively young man when he offended. Counsel also emphasised that he had not re-offended in the period of two years between the attack and the date of sentencing. Common with his co-appellant, it was noted that the potentially aggravating circumstance of intoxication was found by the learned sentencing judge not to be a relevant circumstance of the offence.

20 Tancredi admitted to a number prior convictions. In 2001, when he was 18, he was found guilty of causing injury recklessly and fined $750. Later, in 2005, and when he was 22, Tancredi was convicted again of causing injury recklessly and assaulting police and fined $1,400. We are mindful of the view expressed by the sentencing judge that he did not appear to have been deterred by either of those experiences and court appearances and that he did not have good prospects of rehabilitation. His Honour also found that he had an 'obvious and major anger-management problem' and that there was a need for a sentence that had regard to specific deterrence.

21 Pamvouxoglou was a single man aged 24 at the time of the offence and 26 at the time of sentencing. The sentencing judge observed that his home life was 'close' and 'loving'. He has a good employment history. After finishing schooling in year 10, Pamvouxoglou went into his family's catering business, running a fish and chip shop in Queenscliff. He took over this business in 2004, when his father retired. The learned sentencing judge found that he had successfully conducted and built up the business. In this role he was responsible for twelve staff.

22 On the plea, the learned sentencing judge heard evidence, which he described as 'impressive', from Pamvouxoglou's mother. The witness explained that in October 2007, she and the appellant's father had separated after many years of stable marriage. The relationship had been in difficulties from about April 2007. Before that, the family had been 'tight-knit', with all of the children living at home. The sentencing judge found that the separation had caused the appellant a sense of dislocation. It had followed a number of deaths of extended family members in 2004 and 2005. Then, in May 2007, two of his brothers were afflicted with health problems, one being diagnosed with bladder cancer and one with a bipolar condition. The pressure created by these family problems was accepted by the sentencing judge as a circumstance which led-up to the commission of the offence.

23 The sentencing judge was also impressed by character references tendered on Pamvouxoglou's behalf. They spoke of him as honest, trustworthy, courteous, and respectful of others. His Honour found that Pamvouxoglou had a 'deep and genuine remorse', and that he had good prospects of rehabilitation. His Honour did not consider specific deterrence to assume importance in his case.

24 Counsel for the Crown drew attention to a number of aggravating features of the offence. The unprovoked attack was upon a relatively defenceless victim. The consequences for the victim were extreme. The attack was committed in company and involved repeated kicking and punching. The appellants fled the scene leaving the victim on the ground. They later gave a false and largely exculpatory account.

25 The sentencing judge referred to the importance of general deterrence, and its significance in respect of the prevalence of violent street offences in these terms:

There are multi-faceted approaches to addressing this problem [wanton violence] so as to ensure we all live in a safe environment. These approaches include maintaining proper controls in and about licensed premises, an adequate police presence on our streets and an understanding of the need for personal self-discipline and responsibility in a challenging situation. But a crucially important approach is the role to be played by the courts in enforcing the law and maintaining respect for it in the eyes of the community.

26 We agree that these observations were apposite in circumstances such as the present.

27 The maximum penalty for the offence of recklessly causing serious injury is 15 years' imprisonment. The offence may be committed in extremely varied circumstances. Because, also, the personal circumstances of offenders may vary greatly, achievement of consistency of sentencing in like cases, which informs the relevant range of discretion available to the sentencing judge,[5] can be difficult. Given that difficulty, we have nonetheless concluded that the sentences imposed on each appellant was beyond the range reasonably open.

28 Like Nettle JA, we consider that attention should first focus upon Pamvouxoglou. Having full regard to the gravity of his conduct and to the serious injuries sustained by the victim, we consider it significant that, although Pamvouxoglou is not a young offender in the true sense, he is relatively youthful. We have taken note of the body of favourable material tendered on his behalf. It strongly indicates that his offending on this occasion was out of character, and it speaks to the support he might expect upon his release from imprisonment. We are alive to his good prospects of rehabilitation.

29 On the plea, the prosecutor accepted that it was open to the learned judge to impose a wholly suspended sentence on Pamvouxoglou. Before us, his counsel submitted that the balance of his sentence should be suspended, this leading to his immediate release. But on our view, it would be wrong, just as it would be unrealistic, to suppose that a suspended sentence of imprisonment would have precisely the same deterrent effect as an immediate term of imprisonment.[6] Further, given the prevalence of street based violent offending, we consider that such a sentence would fail to properly emphasise the significance of general deterrence in such cases. So to conclude, however, does not alter the fact that Pamvouxoglou had not previously been subject to a term of imprisonment. That is a consideration which runs in diminution of the length of the custodial sentence which must properly be imposed.

30 It was having regard to all these considerations that we concluded that the sentence imposed was manifestly excessive, and that a sentence of 2 years' imprisonment with a non-parole period of14 months should be substituted.

31 We turn to consider Tancredi's situation. The culpability of his offending was in our view not much greater than that of Pamvouxoglou. True it is that he instigated the confrontation, and began the attack. But Pamvouxoglou kicked the victim when he had already been struck to the ground.

32 With one exception, the personal circumstances of the two offenders were very similar. Tancredi is a youngish man of considerable achievement, and with much family and other support available to sustain him when he is released. Like Pamvouxoglou, he had never been imprisoned.

33 We come to the point of differentiation. It was not in issue on the appeal that, particularly because of his prior convictions, Tancredi must receive a longer sentence than Pamvouxoglou. That is so despite the relatively modest penalties imposed upon him on those earlier occasions.

34 In our opinion, the relativity between the sentences imposed on the two men by the judge below was broadly appropriate. In those circumstances, we concluded that the sentence imposed upon Tancredi was manifestly excessive, and that he should be re-sentenced to 3 years' imprisonment with a non-parole period of 2 years.

[1] This ground is set out as amended by leave on the hearing of the appeal.

[2] [2006] VSCA 212; (2006) 165 A Crim R 524, 527.

[3] See also R v Economedes (1990) 58 A Crim R 466, R v Boxtel [1994] VicRp 54; [1994] 2 VR 98.

[4] _DPP v Terrick and Stewar_t [2009] VSCA 220; R v Ashe [2010] VSCA 119, [32].

[5] See for example R v Lewis [2008] VSCA 202; DPP v Nikolic [2008] VSCA 226; R v Wyley [2009] VSCA 17.

[6] Section 582 Application at [34]. R v Feretzanis [2003] VSCA 8, [48] (Callway JA).