Court of Appeal (Vic)|2014-06-27|Before: Ms J, Tate JA, Nettle JA

Tasevski v The Queen [2014] VSCA 135 (27 June 2014)

The Queen v Tasevski (Unreported, County Court of Victoria, Judge Tinney, 11 October 2013)

1 In this matter, I have had the advantage of reading in draft the reasons for judgment of Tate JA and I gratefully adopt her Honour's statement of the facts and arguments.

2 I have also paid close attention to her Honour's consideration of comparable and comparative cases and I recognise the force of her conclusion that, judged by reference to some of the other cases to which she refers, the sentence of seven and a half years' imprisonment imposed on the charge of intentionally causing serious injury (charge 2) is stern and, statistically speaking, remarkable. Ultimately, however, I am not persuaded that it is manifestly excessive.

3 The maximum penalty for intentionally causing serious injury is 20 years' imprisonment and, as has been observed on other occasions, it may thus be expected that the worst instances of the offence will attract sentences of 15 years' imprisonment and upwards. The offence of causing serious injury in this case was not among the worst instances of the offence but, as the sentencing judge rightly found, it was serious. Hence, the sentence which his Honour imposed was only half of 15 years.

4 Certainly, as Tate JA observes, there are other cases in which similar attacks have netted lesser sentences. High authority dictates that we must regard them as relevant comparators. But the complexities of sentencing are not susceptible to precise mathematical comparisons. They necessitate consideration not only of the nature and gravity of an offence and the injury which it may have inflicted but also of the nature and circumstances of the offender, his prospects of rehabilitation and the needs of community protection. Potentially, therefore, the variables are unlimited and, to a large extent, of a nature incapable of any more precise measurement than informed subjective assessment.

5 Therein lies the essence of the sentencing discretion and why it is that there is

no one necessarily correct sentence for a given offence or offender; only a range of sentences above or below which it is error of law to go.

6 No doubt, some other judges might have assessed things differently and indeed it may be that the majority are likely to have resolved upon a sentence less than was imposed. But to say so is not to conclude that the sentence was manifestly excessive. It is merely to recognise that, within the permitted range of sentencing discretion, views may reasonably differ. I do not accept that a sentence of seven and a half years for a knife attack of the kind in issue lies beyond that range.

7 More precisely, given that this was an unprovoked knife attack on an innocent stranger, lawfully going about his business in a public place, which caused him life threatening physical injuries and thus far unresolved traumatic psychological sequelae, committed by the applicant while released on bail pending trial for another albeit less serious knife attack on another victim only seven months before, I am unable to conceive of a sentence of seven and half years' imprisonment as manifestly beyond the bounds of just punishment.

8 The sentence of three and half years' imprisonment imposed on the charge of intentionally causing injury which was constituted of the earlier stabbing (charge 1) is in my view unremarkable and, as was properly conceded, the order for cumulation of 18 months of that sentence on the sentence imposed on charge 2 is unexceptionable.

10 The applicant, Robert Tasevski ('Tasevski'), applies for leave to appeal, pursuant to s 278 of the Criminal Procedure Act 2009, against the sentence imposed on him by the County Court of Victoria in respect of one charge of intentionally causing

injury ('ICI') and one charge of intentionally causing serious injury ('ICSI').[1] The ICSI offence was committed on 12 February 2013 while Tasevski was on bail for the ICI offence, which had been committed on 12 July 2012. Both incidents involved a stabbing with a knife, one to a victim known to Tasevski while the other victim was unknown to him. Tasevski pleaded guilty to both charges and was sentenced as follows:

Intentionally cause injury (ICI) [s 18 of the Crimes Act 1958]

Intentionally cause serious injury (ICSI) [s 16 of the Crimes Act 1958]

Section 6AAA statement: 12 years' imprisonment, non-parole period 10 years.

11 Tasevski originally sought leave to appeal on the following grounds:

The individual sentences, the total effective sentence and the non-parole period imposed are manifestly excessive having regard to:

(i) the aggravating and mitigating features of the offending;

(ii) the offence of ICSI falling within the mid-range of offences;

The learned sentencing judge erred when he asked the Prosecutor to revisit the sentencing range[2] and went so far as to ask:

(i) the seniority of the Crown Prosecutor who had provided the range (but then subsequently withdrew this request);[3] and

(ii) whether the Director personally knew that the range had been given on his behalf.

The sentencing discretion miscarried as a result of the learned sentencing judge's having sentenced Tasevski, given the nature of the offending and past history, on the basis that his prospects for rehabilitation must, to a degree, take a backseat**.**

12 It was clarified at the hearing of the application for leave to appeal that ground 2 was withdrawn in light of the High Court's decision in Barbaro v The Queen.[4] It was also clarified that ground 3 was to be treated as a particular of ground 1. This had the effect that Tasevski's application for leave to appeal his sentence was based upon the single ground of manifest excess.

13 The first offence arose out of an altercation at the Nicholson Street Mall in Footscray, between Paisley and Barkly Streets, on the afternoon of Thursday 12 July 2012.[5] Tasevski was standing with a group of acquaintances at the west side of the mall, which was busy with people, including women and children. At around 3:55pm the victim, Scott Garvan, was walking through the mall in the direction of Tasevski. As he approached he was intercepted by Tasevski's partner, Vaihoi Jackomos, and another woman, Candice Harper. The victim and Jackomos had previously been in a relationship. With Tasevski watching from a few metres away, the two women pushed and shoved the victim, then grabbed him by his clothing and held him up against the front counter of a nearby kebab shop. Tasevski took off his jacket, handed it to one of his friends, and quickly walked a short distance away and obtained a knife. By this stage the victim was moving backwards into the mall separating himself from the women by a few metres. Tasevski returned and jogged up to the victim while holding the knife in his right hand. He then swung the knife at the victim once or twice, stabbing the victim once to his left back chest area (charge 1 - ICI).

14 The victim walked backwards through the mall with Tasevski and the two women closely following him. The victim then walked around the corner into Barkly Street. He was met by some friends a short distance away outside a restaurant. Tasevski walked back through the mall. He retrieved his jacket which he held over his head, covering the knife. The incident was captured on CCTV footage.

15 Police arrived about 10 minutes later and spoke with the victim. He refused to tell them who had stabbed him. He was taken by ambulance to the Emergency Department of the Royal Melbourne Hospital.

16 The sentencing judge described these events as 'a startling act in a public place in broad daylight as many people went about their business in the Footscray mall.'[6] His Honour noted that in a subsequent record of interview Tasevski said that he was acting in self defence and that the victim was armed. The judge rejected those propositions. His Honour concluded, after watching the CCTV footage, that the victim, who did indeed seem to be 'making a beeline towards [Tasevski] suggestive of some hostile intent on his part',[7] was being dealt with by the two women, who 'seemingly had the better of that exchange.'[8] Tasevski was some distance from the victim and was not 'in any way threatened by Garvan who is not seen to be carrying or swinging any weapon at all. Indeed he did not have one.'[9] Upon obtaining the knife, the judge described Tasevski running 'quite some distance along the mall with a knife in [his] hand and stabbed [Garvan].'[10]

17 The wound inflicted on the victim caused significant blood loss (it was estimated that he lost 500 ml of blood at the scene) and required urgent attention. At the Royal Melbourne Hospital he was found to have a 3 cm deep incised wound to the left posterior (back) chest wall with active bleeding. A 300 ml blood clot had to be removed in the operating theatre and a small bleeding artery was identified and ligated. The victim, who had refused to tell police who had stabbed him, left the hospital that night against medical advice.

18 At the time of the second offence Tasevski had been released on intensive supervised bail arising from the first offence. He was sitting at a table outside a café in St Albans at about 1:30pm on 12 February 2013 in the company of three women. The victim, James Russell, aged 28, walked past wheeling his bicycle. He and Tasevski were total strangers. There was a small verbal altercation between Russell and one of the women, Jodie Romeyn, at Tasevski's table, over the purchase of drugs during which Russell was heard to say, 'What, do I look like a fucken junkie?'. Romeyn thought that Russell had called her a 'junkie dog' and responded by saying, 'Fuck off, I'm not a junkie dog'. Tasevski then reached down into a backpack at his feet, pulled out a knife and ran towards the victim. The victim dropped his bike and grabbed Tasevski by the wrists to prevent Tasevski stabbing him. Tasevski managed to get one hand free and stabbed Russell in the stomach on the right side (charge 2 - ICSI).

19 The victim let go of Tasevski's hand. Tasevski then returned to the table and sat down 'as though nothing had happened'.[11] As the victim called his mother, Tasevski taunted him, calling out 'Call the cops'. One of the women apologised to Russell, but then she and the remainder of the party, including Tasevski, left. The victim was in pain and sat down in a shop doorway. He was assisted by members of the public until an ambulance arrived.

20 The victim was taken to the Emergency Department of the Royal Melbourne Hospital and treated for a 1 cm wide, 7-10 cm deep vertical stab wound to his right abdomen. A laparoscopy revealed a peritoneal breach with blood in the peritoneal cavity and a 1 cm laceration to the liver. He underwent surgery that day and was discharged after three days in hospital.

21 In a victim-impact statement the victim spoke of his general feelings of wellbeing or enjoyment of life having changed dramatically. It is now harder for him to get out of the house and he has become fearful and anxious, constantly reliving what happened on the day. He can no longer work full-time and cannot lift anything heavy. He was previously a qualified boiler-maker. He is seeing a psychologist who has diagnosed post-traumatic stress disorder.

22 Tasevski was arrested when he reported for bail on 29 March 2013.

23 The judge found that both stabbings were serious examples of each offence,[12] notwithstanding that neither was 'greatly planned' nor well thought out. [13] He described the ICI charge as a 'high level' example of the offence[14] given that: the injury required urgent medical attention; the victim, who was unarmed and defenceless, was stabbed in a public place after Tasevski ran some distance towards him, past members of the public, while carrying the knife; Tasevski was prepared to stab the victim 'on an obviously potentially dangerous area of the body',[15] and it was only a matter of luck that the victim was not more seriously injured; and these 'incredible'[16] acts had nothing to do with self-defence or defence of another.

24 In relation to the ICSI charge the judge did not accept the Crown's submission that the offence was 'around a mid range offence',[17] given 'the location of the offence, the use of the knife, the area of the body stabbed, the depth of the wound, the serious injury actually caused and the significant impact of the crime'.[18] He noted, however, that it was 'not at the top of the scale' because the attack on Russell was not a sustained or joint attack, and Russell was not left with 'catastrophic life altering crippling disabilities' such as 'paraplegia or some dreadful brain injury leading to a life of dependence on others'.[19] But he found that the impact on Russell's life was significant and the serious injury was inflicted 'in what was a senseless and cowardly act of violence as you stabbed an unarmed and essentially defenceless victim.'[20] The stabbing was to a part of the body in which serious injuries were not only foreseeable, but also intended.

25 The judge considered Tasevski's background. He was born in Australia, but when he was a boy he and his twin brother were taken to Macedonia to live with his paternal grandparents while his parents and older brother returned to live in Australia. He completed primary school in Macedonia. His parents brought him back to Australia to start his secondary schooling. Tasevski's almost complete lack of English meant that his secondary schooling was a challenge and he left at age 16 or 17. He has never married although he has a 13-year-old daughter. He is estranged from most of his family, save it seems from his twin brother. The judge noted that drugs have been 'a very major problem' for Tasevski over many years.[21] At the time of the offending Tasevski was 40 years of age.[22]

26 A report from a psychologist, Dr Julie Janev, dated 29 March 2013, was tendered during the plea. Dr Janev took a history from Tasevski which indicated that the circumstances in which he and his brother were first left with their grandparents in Macedonia and then brought back to Australia was disruptive and traumatic. The report suggested that Tasevski struggled with feeling aggrieved and abandoned in Macedonia, while upon returning to Australia, he regarded his parents as strangers and missed his grandparents and friends in Macedonia. Tasevski told Dr Janev that his father was a violent alcoholic who abused him on a daily basis, both physically and emotionally. It was this that led to Tasevski's estrangement from his family. Dr Janev conducted various psychometric tests on Tasevski and concluded that he met the DSM-IV-TR diagnostic criteria for opioid dependence disorder, cannabis dependence disorder, mixed personality disorder (antisocial, passive aggressive, paranoid) and anxiety disorder not otherwise specified (mixed anxiety and depression).

27 However, Tasevski had not told Dr Janev that he had committed a second serious offence while on bail. Dr Janev had seen Tasevski on several occasions including on one occasion after he had committed the second offence but before he was arrested for it.[23] As the judge remarked, Tasevski 'held back from [Dr Janev] the information relating to a most serious criminal event'.[24] In those circumstances, the judge placed only limited weight on the conclusions Dr Janev reached. It is clear that Dr Janev was completely unaware of the second offence when she described Tasevski as having reached a turning point in his life, showing 'strong rehabilitation potential with a reduced risk of re-offence'. This assessment was based on the absence of reoffending while on bail (to her knowledge) and she described 'this happy state of affairs [as] attributable to [Tasevski's] open attitude and determination to change and to detach [himself] from all negative peer influences and substances.'[25] The judge considered that Dr Janev had not viewed the CCTV footage of the first offence and had engaged in a degree of speculation in arriving at an explanation for that offence as being the result of 'a combination of vengeance, alcohol intoxication, personality pathology and impoverished coping and social problem solving skills, stemming from childhood instability and traumatisation experiences, and negative role-modelling ...'. He also observed that the CCTV footage indicated that Tasevski did not act without thinking in relation to the first offence given that he obtained the knife before running at the victim. He was also puzzled by Dr Janev's reference to alcohol intoxication. He noted that Dr Janev's assessment of Tasevski having the capacity to meet a community-based disposition was founded on an erroneous understanding, based on what Tasevski had told her, that he had successfully completed the Court Integrated Services Program. He described the notion of Tasevski having 'successfully' completed that program as a 'nonsense' and said to Tasevski:

People thought you had successfully completed it. You knew you had not. You had in fact, and you knew this, committed a most serious offence in the context of there being three months of support and intensive counselling provided to you. [26]

28 Dr Janev's report had been tendered on behalf of Tasevski on the basis that it attracted the third and fourth principles of Verdins.[27] Principle three of Verdins relates to whether general deterrence should be modified or eliminated as a sentencing consideration given the nature and severity of the symptoms of impaired mental functioning exhibited by an offender, and the effect on the offender's mental capacity, at the time of the offending or at the time of sentence, or both. Principle four of Verdins queries whether specific deterrence should likewise be modified or eliminated. The judge rejected that submission[28] and this rejection has not been sought to be appealed.

29 The judge further observed that the report was not being relied on in any way to reduce Tasevski's moral culpability or to satisfy the first Verdins principle.[29] Principle one of Verdins asks whether any impaired mental functioning reduced the moral culpability of the offending conduct, as distinct from the offender's legal responsibility, with the effect that denunciation is less likely to be a relevant sentencing objective. Indeed, in the judge's view, there was nothing to engage any of the Verdins principles.[30] Quite apart from the problems arising from the misinformed basis for Dr Janev's conclusions, he noted that the psychological conditions identified were not severe in their degree and did not deprive Tasevski 'of any measure of understanding at all'.[31] Tasevski well knew that what he was doing was serious and illegal. In relation to the second offence, Tasevski had chosen to carry a weapon in his backpack.

30 Far from the need for specific deterrence to be modified, his Honour said:

It is my assessment of the materials including the report of Dr Janev that there is nothing at all in your condition that renders you an inappropriate vehicle for specific deterrence or which should lead to any reduction in weight to be given to that purpose of sentencing. You can be deterred. You need to be deterred. It is an important sentencing consideration and it can be achieved.[32]

I hold the same view as to general deterrence. You are in my view an appropriate vehicle for general deterrence. Indeed, the nature of the crimes and your personal circumstances including a long history before the Courts cry out for each of those principles to be given full weight. You understand the laws you have breached, the seriousness of the crimes, the authority of the Court, the need for punishment and the need for deterrence. You are in my assessment an entirely appropriate vehicle for general and specific deterrence.[33]

31 The judge noted that Tasevski had admitted 'a highly relevant criminal history' with 'some serious past offending including many prior appearances for the carriage of weapons and a number of assaults, one with a weapon.'[34] He also observed that Tasevski had committed offences of trafficking, robbery and attempted robbery and referred to an appearance for 'recklessly causing serious injury'.[35] However, the criminal record certified by the Crown Prosecutor contains only one offence of recklessly causing 'injury', not 'serious injury'.[36] The judge concluded:

I see really no purpose in counting up the number of appearances and convictions and publishing now in these reasons the result of that audit. Your prior record speaks for itself. It is a relatively bad history and one that permits little leniency in this case. The chronology is also troubling. Bad enough to have committed the act in July 2012 in the Footscray Mall. To then commit the attack with a knife upon Mr Russell whilst on bail awaiting hearing for that first event is most disturbing. Your criminal history and the chronology of offending makes as plain as day that this court must take strong steps to dissuade you from committing crimes of violence as well as protecting the community from you. Courts have tried to lead you away from offending with really very limited success to date. I will try again.[37]

32 The judge assessed Tasevski's prospects of rehabilitation as being limited, not 'at all strong' and indeed 'quite bleak'.[38] He noted that Tasevski is not a youthful first offender, but rather a mature man who had demonstrated 'a preparedness to carry and, it would seem, to use a dangerous weapon in circumstances not remotely calling out for even for the production of the item.'[39] He concluded that Tasevski is 'a real danger to the public'.[40] He said that Tasevski's prospects of rehabilitation,

must, to a degree, take a backseat in this sentencing exercise given the nature of this offending and your past history, nor do I rate them highly at all as I have made clear.[41]

33 The judge took account of the utilitarian value of Tasevski's pleas of guilty, treating both as being entered at the earliest available opportunity, and indicated that 'appropriate discounts' would be given.[42] And he acknowledged that the evidence that Tasevski was serving his sentence in protection in jail meant he would experience an increased custodial burden.[43] However, he found that Tasevski had not demonstrated any real remorse, although the result of that finding was the absence of a mitigating factor rather than the presence of an aggravating one.[44]

34 Tasevski submitted that the judge's assessment of the ICSI offence as a high level offence 'inflated the overall criminality to an inappropriate level', which in turn led to manifestly excessive sentences for both offences. No complaint is made about the judge's 'considered analysis' or the orders for cumulation of 18 months.

35 An immediate response is to point out that the judge did not treat the ICSI offence as a 'high level example' of that form of offending. In characterising the conduct as involving a 'high level example' of the offence he was referring to the ICI offence, not the offence of ICSI. Rather, he regarded the ICSI offence as 'not at the top of the scale' although he rejected the characterisation of it as 'around a mid way offence'. He viewed both offences as serious examples of their type. It is worth setting out the relevant passages of the judge's reasons in full:

In my judgment each offence represents a serious example of the given crime. I do not accept the Crown contention that the intentionally causing serious injury was 'around a mid range offence' given the location of the offence, the use of the knife, the area of the body stabbed, the depth of the wound, the serious injury actually caused and the significant impact of the crime. Further, the total senselessness of the act of violence committed upon a stranger and one occurring whilst you were released on bail awaiting hearing for another serious crime of violence.

I accept that the serious injury charge was not at the top of the scale as far as the ultimate outcome to your victim, nor was it a sustained or joint attack. As serious as the injury was and as deep as the impacts have been upon Mr Russell, he has not been left with catastrophic life altering crippling disabilities as sometimes occur for instance where there is paraplegia or some dreadful brain injury leading to a life of dependence on others. But there has been a significant impact on his life. You produced this serious injury in what was a senseless and cowardly act of violence as you stabbed an unarmed and essentially defenceless victim. There was no disconnect between your physical act and the ultimate serious injury actually sustained. They are the very sort of serious injuries easily foreseeable to someone using a knife to stab to the body of a person; not just foreseeable but intended. As to the injury charge, it represents in my view a high level example of that offence given the mechanism and the level of actual injury requiring as it did urgent medical intervention and again, the setting, a public place, and your moving quite some distance to your victim with the knife and then using it. I accept that there must have been some animosity felt by your victim and that he was heading in your direction as can be seen from the CCTV footage but your acts were incredible and had nothing at all to do with self defence or defence of another. They did not occur in that initial movement as he came towards you.[45]

36 However, while acknowledging the limitations on the use to be made of sentencing statistics and comparable cases, Tasevski submitted that the second offence does not fall within the serious level of offending demonstrated in three cases which involved offences of ICSI: DPP v Briggs,[46] DPP v Kao[47] and Priestley v The Queen.[48] Tasevski noted that his Honour was not provided with any comparable cases during the plea hearing and speculated that if he had been, he may have accepted the Crown submission that Tasevski's offending on the ICSI charge fell within the mid range.

37 In DPP v Briggs the offender stabbed the victim, who was unknown to him, with a kitchen knife while in a public place. The offender was on bail for other serious violent offences and was intoxicated and on drugs when he stabbed the victim, whom he mistakenly believed to be the new boyfriend of his former partner, multiple times. The victim sustained a lacerated diaphragm, an abdominal wound to his right side that resulted in a lacerated liver, a transection upper arm nerve injury and a lacerated right arm. Following a plea of guilty, the offender was sentenced in relation to this ICSI offence[49] as a serious violent offender, in the context of multiple offences on three presentments. The sentence originally imposed for the relevant offence was two years and six months' imprisonment.[50] The total effective sentence imposed on all three presentments was five years' imprisonment with a non-parole period of three years. The sentencing judge made a s 6AAA declaration of a total effective sentence of ten years' imprisonment with a minimum of seven years, taking into account the pleas of guilty, and all other matters, including Brigg's undertaking to co-operate.

38 Briggs had 60 prior convictions, including eight for offences of violence. However, there were a number of mitigating factors arising from the circumstances of the case, including the loss of his father, the break-up of his family, his having been sexual abused as a child, homelessness and unemployment, the fact that he was seeking help for alcohol and drug addiction, depression, the social disadvantage he suffered arising from his aboriginality, the burden of serving his imprisonment in protective custody, his genuine remorse for his actions, and an undertaking to give evidence against his co-offender, Kelly.

39 It was Briggs' failure to comply with this undertaking that led the Director of Public Prosecutions ('the DPP') to appeal seeking an increase in the sentence, pursuant to s 567A(1A) of the Crimes Act 1958. The breach of the undertaking was due to factors beyond Briggs' control as he was placed in a cell with Kelly, who pressured him not to give evidence against him, rather than being placed in protective custody as he should have been, due to a breakdown in communications. The DPP conceded that Briggs had been overborne by Kelly's presence. On appeal, as Habersberger AJA (with whom Redlich and Harper JJA agreed) remarked,[51] the Court was constrained in re-sentencing by the indication given by the sentencing judge below of the sentence he would have imposed but for the undertaking. The other mitigating factors also remained relevant to re-sentencing. The Court increased the sentence on the relevant ICSI offence to three years and nine months' imprisonment.[52] It re-sentenced Briggs to a total effective sentence of seven years with a four-year non-parole period.[53]

40 The case of DPP v Kao also involved the unprovoked stabbing of the victim. Kao had collected his daily dose of methadone at a pharmacy and shortly thereafter attacked the victim from behind, using a knife thought to be 30 cm in length, stabbing him in the left side of his lower back and forcing the knife upwards. He twisted the knife in order to inflict more harm before withdrawing it and fleeing the scene. As a result of this vicious attack the victim suffered a ruptured bowel, spleen, diaphragm and lung. Emergency surgery was needed and the victim's spleen had to be removed. He was fortunate to have survived. Kao went home after the attack and changed his clothes.

41 Kao was originally sentenced, as a serious violent offender, to four years' imprisonment with a non-parole period of two years and six months. The Court of Appeal (Weinberg and Coghlan JJA, with Buchanan JA agreeing) allowed the Crown appeal on the ground of manifest inadequacy and resentenced Kao to six years' imprisonment with a non-parole period of four years.[54] The Court of Appeal upheld the sentencing judge's assessment of the offending as being a serious example of ICSI, sitting at the upper end of the range, saying:

The respondent inflicted a life threatening injury, which resulted in permanent scarring. It led to the loss of the victim's spleen. The offence was, as the Crown submitted, at the upper end of the range of seriousness for this particular crime.[55]

42 The Court of Appeal further described the offending as 'a vicious and cowardly attack on a victim who ... had done nothing to provoke it ... committed by a man who had, in the past, frequently armed himself with knives when out and about in the community.'[56]

43 Kao had an extensive criminal history involving violence. The only mitigating factor of any real significance was said to have been the plea of guilty, principally for its utilitarian value, rather than as an indication of any genuine remorse.[57] Kao's prospects of rehabilitation were said to be poor. The Court also rejected an argument put on behalf of Kao that the sentencing judge had erred by giving too little weight to the claim that he had been experiencing a drug-induced psychosis when he committed the offence that would have reduced his moral culpability. The Court noted that neither the medical evidence nor the evidence of Kao's conduct supported such a finding, nor was it tenable as a matter of policy in circumstances where Kao was experienced in the use of drugs and knew the effect of them on him. In re-sentencing Kao, the Court said:

In our opinion, the sentence imposed below failed to give proper weight to a number of critical sentencing considerations. These included the need to protect the community, a paramount matter, and the need for any sentence to achieve both general and specific deterrence. A sentence of four years' imprisonment falls well short, in our view, of meeting these objectives.[58]

44 It noted that it had regard to the principle of double jeopardy,[59] which was still applicable at that time.

45 In Priestley v The Queen, Priestley visited the victim with another man in order to purchase cannabis. There was insufficient cannabis available to satisfy Priestley and his companion and they decided they wanted cash as well and started to search the house. Without any provocation from the victim, Priestley produced a 7 cm long pocket-knife and stabbed the victim once to the left side of his stomach. The two men then fled. Priestley was on parole at the time of the offending. The victim was found to have suffered a perforation in the anterior distal colon, causing internal bleeding, and was hospitalised for 10 days. Priestley was charged with one count of ICSI. The sentencing judge imposed a sentence of five years' imprisonment with a non-parole period of three years.[60] The Court of Appeal[61] rejected a ground of appeal which sought to have Priestley re-sentenced on the basis that he was required to serve 12 months owed under his parole, which was cancelled subsequent to the original sentence being imposed and which had the effect of extending the total effective sentence to six years.[62] However, it allowed Priestley's appeal on the basis that the sentencing judge had not taken into account evidence that Priestley would serve his sentence in protection. Priestley was resentenced to four years' imprisonment with a non-parole period of two years and six months.

46 The Crown in the present case submitted that none of these cases demonstrate that the sentence of seven years and six months' imprisonment for the offence of ICSI imposed on Tasevski was beyond the range. It pointed to the 'sentencing snapshot' for ICSI[63] that indicates that a sentence of between seven and eight years was imposed on 24 occasions over a five year period compared to 89 occasions for the most common sentence of between three and four years and slightly less (being 80 occasions) for sentences between four and five years. It referred to the overview prepared by the Judicial College of Victoria[64] of sentences imposed for ICSI that indicates that sentences between seven and eight years for ICSI 'are not unheard of'.

47 The Crown also submitted that a comparison with Briggs is difficult because of the restraint, in the context of a breach of an undertaking to co-operate, that the sentence cannot exceed that which the judge at first instance specified would have been imposed but for the undertaking. Comparison is also difficult in relation to Kao because, as mentioned above, the Court was required at that time to have regard to the principle of double jeopardy.

48 The Crown emphasised that defence counsel on the plea had conceded the need for cumulation between the ICSI offence and the ICI offence given that they had occurred on completely separate occasions and given that the ICSI offence occurred while Tasevski was on bail for the ICI offence. It submitted that the cumulation of 18 months for the ICI offence was well within range as was the sentence of three and a half years. The relevant 'sentencing snapshot' for ICI[65] indicated that there were offenders who received a sentence of between three and four years. While this is true, the sentencing snapshot also revealed that imprisonment terms ranged from one month to four years and nine months, while the median length of imprisonment was one year (meaning that half of the imprisonment terms were shorter than one year and half were longer). The most common length of imprisonment imposed was one year to less than two years (39 people).

49 Ultimately, the Crown accepted that the total effective sentence was at the higher end of the permissible range but was nevertheless appropriate.

50 In my view, the sentence imposed in respect of the ICSI offence was disproportionate to the degree of criminality involved and was beyond the permissible range.

51 It can be accepted that comparisons with other cases will only be of limited assistance in determining an appropriate sentence in an individual case. While current sentencing practices are important,[66] care must be exercised when having regard to sentences passed in other cases because while past sentences provide a historical account of what has happened previously, they do not of themselves fix boundaries which must dictate future sentences.[67] It is only by reference to the whole of the circumstances giving rise to the offending that unifying principles can be discerned.[68] This was recognised by Ashley, Redlich and Harper JJA in Hudson v The Queen,[69] where they quoted with approval New South Wales authority:[70]

It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority ... At the most, other cases can do no more than become part of a range for sentencing ...

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required.[71]

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.[72]

52 The matters personal to the offenders in Briggs, Kao and Priestley reflected their distinctive personal histories. Nevertheless, the circumstances of the ICSI offending in those cases bore some substantial similarities to the offending here, most particularly the vicious and unprovoked nature of the stabbing with a knife (Briggs, Kao, Priestley); the victim was a stranger to the offender (Briggs); the stabbing occurred in a public place (Briggs; Kao); the offending occurred while the offender was on bail or on parole (Briggs; Priestley); and the victim required hospitalisation and suffered severe wounds including lacerations to vital organs (Briggs (lacerated diaphragm and liver); Kao (ruptured bowel, spleen, diaphragm and lung); Priestley (perforation in the anterior distal colon). Yet these offenders were re-sentenced on appeal, in respect of the ICSI charges, to head sentences of three years and nine months; six years, and four years respectively.

53 Furthermore, two of the offenders (Briggs and Kao) were to be sentenced as serious violent offenders. In those circumstances, a court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.[73] This was not the case for Tasevski who was not to be sentenced as a serious violent offender, not having been convicted of any serious violent offences, namely those offences falling under cl 3 of Schedule 1 to the Sentencing Act.[74]

54 The offence of ICSI can occur in a wide variety of circumstances with a resulting broad spectrum of punishment. As Priest JA said in Nash v The Queen:

Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of 'serious'. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum to head sentences of imprisonment in double figures at the high end.[75]

55 In Nash the appellant was sentenced to seven years on a charge of ICSI for kicking a kneeling frail woman in the face causing serious permanent disability. Nash kicked the woman in the face causing her to fall onto a driveway and hit her head. Nash continued to punch her a number of times in the head and upper part of her body. Other consequences of ICSI offences include lifelong disabilities, including loss of sight (11 years' imprisonment);[76] life threatening injuries causing induced coma from knifing (9 years);[77] acquired brain injury and severely damaged sight with the victim unlikely to live independently again caused by the use of a tyre lever (8 years 6 months);[78] spinal cord laceration with victim wheelchair-bound from use of knife wielded by co-offender and encouraged by offender (7 years and 6 months);[79] brutal assault on unconscious victim lasting 20 minutes (7 years and 6 months);[80] fractured vertebra caused by knifing (7 years);[81] significant blood loss and tendon and nerve damage cause by use of a knife (7 years);[82] deliberate cutting of victim's flesh through use of knife (6 years);[83] life-threatening permanent injuries through use of a knife (6 years);[84] victim unable to walk for several months through use of metal pole (5 years);[85] life-threatening stab wounds with perforated colon through use of knife (4 years/youthful offender);[86] and the infliction of life-threatening wounds on a defenceless victim by use of knife (4 years).[87]

56 By way of illustration, in The Queen v Huynh[88] the appellant contested the charge of ICSI while pleading guilty to the alternative count of recklessly casing serious injury and guilty to one count of robbery. The appellant had struck the victim with a metal bar so hard that it broke the victim's nose, fractured his cheekbone, fractured his right eye socket, collapsed his sinuses and ruptured his right eye. After the trial the appellant was convicted of robbery and of ICSI. He was sentenced to eight years' imprisonment on the ICSI count and two years' imprisonment for robbery with one year of the sentence imposed for the robbery to be served cumulatively on that imposed for the ICSI count, giving rise to a total effective sentence of nine years' imprisonment with a non parole period of six and a half years. The Court of Appeal[89] dismissed the appeal and held that the sentence imposed was not manifestly excessive.

57 In DPP v Zullo[90] the appellant had made a vicious and frenzied attack upon his victim, punching the victim hard to the face with clenched fists until he fell to the ground. He then knelt beside his victim and continued to punch him to the face and head until the victim lost consciousness. As the victim lay unconscious he continued to kick him in the head and upper body. On a Crown appeal, the Court of Appeal held that the sentence of three and a half years' imprisonment, with a non-parole period of two and a half years, was manifestly inadequate and re-sentenced the offender to seven years' imprisonment with a non-parole period of five years.

58 In the recent case of Pasinis v The Queen[91] the appellant pleaded guilty to two charges of ICSI, both perpetrated on the same victim in the context of family violence and against a history of violence and abuse.[92] The offending consisted of the appellant breaking his de facto wife's left arm and months later, when the left arm was not yet healed, breaking her right arm. He made the victim lie to police to say that he was not responsible for her injuries. He stood to be sentenced as a serious violent offender. He was sentenced to five years' imprisonment on each charge, with three years of the sentence imposed on the second charge to be served cumulatively with the sentence imposed on the first charge. The total effective sentence was eight years' imprisonment with a non-parole period of six years. The appeal was dismissed and the Court held that the sentence was not manifestly excessive.

59 It is not to be denied that the protection of the community was an important sentencing consideration here, as was the need for specific and general deterrence. The intentional infliction of serious injury on a stranger in a public place by an offender with a history of violent offending requires appropriate denunciation. The judge was correct to describe the offending as a serious example of the offence. However, I consider that the sentence of seven years and six months imposed here by the sentencing judge with respect to the ICSI charge to be inconsistent with current sentencing practice and to fail properly to reflect the circumstances in mitigation, including Tasevski's early plea of guilty, his family history, including his early feelings of abandonment and the violence and abuse he suffered at the hands of his father, the fact that he will serve his custodial sentence in protection, and, importantly, that he did not stand to be sentenced as a serious violent offender.

60 Moreover, I consider that the sentence imposed on the ICI charge was manifestly excessive. While the judge was also correct to describe the offending as a serious example of this type of offence, the objective circumstances of the offending did not warrant a sentence that fell outside current sentencing practice.[93] As noted above,[94] the degree of cumulation ordered was not challenged.

61 I do not consider that the challenge to the severity of the sentence imposed by the judge is advanced by the submissions made about the judge's assessment of Tasevski's prospects of rehabilitation.

62 Tasevski submitted that the judge, by putting his prospects of rehabilitation 'at the backseat' of his assessment, and providing only two years in which he is to be eligible for parole, imposed a sentence that means he will leave gaol as an institutionalised person. Either a longer parole period or a shorter non-parole period would 'ultimately benefit, not just Tasevski, but the community as a whole, as he is reintegrated back into society.'

63 The Crown submitted that the approach taken by the judge was open given Tasevski's prior history and the fact that he committed two separate violent offences, one of which occurred while he was on bail. The judge was entitled to consider that the protection of the community should loom large when exercising his sentencing discretion.

64 The aim of a grant of parole is to facilitate the protection of the community by seeking to ensure that an offender has the skills to reintegrate into society without further offending. The determination of a period during which an offender is eligible for parole requires careful assessment within the context of the instinctive synthesis. It depends on the close evaluation of an offender's prospects of rehabilitation, as occurred here. I do not consider that the lack of priority the judge gave to Tasevski's rehabilitation, if that is an accurate description of his Honour's reasoning, was mistaken given that he judged Tasevski's prospects of rehabilitation to be 'quite bleak'[95] based upon an appraisal of his prior criminal history, including his having committed the ICSI offence while on bail for the ICI offence, there having been 'three months of support and intensive counselling provided'[96] to him. I do not consider that his Honour's treatment of the prospects of Tasevski's rehabilitation provide a sound basis for the conclusion that the sentence imposed was manifestly excessive.

65 For the reasons I have given, I accept ground 1.

66 The application for leave should be granted and the appeal treated as heard instanter.

67 The appeal should be allowed and the sentencing discretion re-opened. I would re-sentence Tasevski in the following way:

Intentionally cause injury (ICI) [s 18 of the Crimes Act 1958]

Intentionally cause serious injury (ICSI) [s 16 of the Crimes Act 1958]

Section 6AAA statement: 9 years and 6 months' imprisonment, non-parole period 8 years.

68 I have had the considerable advantage of reading in draft the reasons for judgment of Tate JA and then the reasons in draft of Nettle JA.

69 Like Nettle JA, I too recognise the force of Tate JA's conclusion that, judged by reference to some of the other cases to which her Honour refers, the sentence of seven and a half years' imprisonment imposed on the charge of intentionally causing serious injury (charge 2) is stern and, statistically speaking, remarkable. For that reason I would grant leave to appeal.

70 However, for the reasons given by Nettle JA, I am not persuaded that this sentence or the sentence imposed on the charge of intentionally causing injury (charge 1) is manifestly excessive. For the same reasons, I am not persuaded that the total effective sentence or the non-parole period were outside the permissible range.

71 I would grant the application, but dismiss the appeal.

[1] The sentence was imposed on 11 October 2013.

[2] It was conceded in Tasevski's written case that the judge did not ask the Prosecutor to revisit the sentencing range, but it was contended that the discussion between the judge and the Prosecutor had the effect of conveying the impression that a revised range would be welcome. In any event, ground 2 was withdrawn.

[3] The words 'and even initially asked the name of the Crown Prosecutor,' formed part of the original proposed ground but were withdrawn from Tasevski's written case. It was therefore to be assumed that the allegation no longer formed part of proposed ground 2 which, as mentioned, was withdrawn.

[4] Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323.

[5] The circumstances of the offences were summarised in the agreed Summary of Prosecution Opening dated 9 October 2013. While Tasevski's counsel at some points departed from the agreed summary in relation to charge 1 (ICI), suggesting that Tasevski acted in self-defence, he subsequently conceded that this was unsupported and reverted back to the summary.

[6] DPP v Tasevski (Unreported, County Court of Victoria, Judge Tinney, 11 October 2013) ('Reasons'), [4].

[22] Tasevski was born on 11 March 1972.

[27] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[36] This was dealt with in the Ararat Magistrates' Court on 18 September 2009 for which Tasevski was sentenced to 21 days' imprisonment to be served cumulatively on other sentences then being served. The Crown acknowledged this in its written case.

[45] Reasons, [32]-[33] (emphasis added).

[46] [2010] VSCA 82 ('Briggs').

[48] [2011] VSCA 378 ('Priestley').

[49] Count 1 on the third presentment: Briggs [2010] VSCA 82 [6].

[50] Briggs [2010] VSCA 82 [6].

[51] Ibid [59], citing Director of Public Prosecutions v Mann [2006] VSCA 228 [8] and [10] (Warren CJ).

[52] Briggs [2010] VSCA 82 [65].

[54] Kao [2009] VSCA 237 [48].

[59] Ibid [48]. This was before the commencement of ss 289(2) and 290(3) of the Criminal Procedure Act 2009, which precludes the Court taking double jeopardy into account in deciding whether a Crown appeal should be allowed or in re-sentencing a respondent to a Crown appeal. The relevant principle of double jeopardy was discussed in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, R v Clarke [1996] VicRp 83; [1996] 2 VR 520, and Director of Public Prosecutions v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 to the effect that leave to appeal against sentence should be granted to the Crown only in rare circumstances, because a Crown appeal puts in jeopardy a person's liberty subject to the original sentencing disposition, or the re-sentencing exercise should be modified in the light of that consideration. See also Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 648-662, [52]-[123] (Ashley, Redlich, Weinberg JJA).

[60] Priestley [2011] VSCA 378 [2].

[61] Harper JA (with whom Buchanan JA agreed).

[62] Priestley [2011] VSCA 378 [9], [12].

[63] Sentencing Advisory Council, 'Causing serious injury intentionally' (Sentencing Snapshot No 125, June 2012) figure 7.

[64] Judicial College of Victoria, 'Overview of ICSI sentenced as the principal offence in the Court of Appeal', (Victorian Sentencing Manual, 4 February 2014) 29.9.1.1.

[65] Sentencing Advisory Council, 'Causing injury intentionally' (Sentencing Snapshot No 128, June 2012) figure 9.

[66] Sentencing Act 1991, s 5(2)(b), Nash v The Queen [2013] VSCA 172 ('Nash').

[67] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 536-7 [53]-[55].

[69] (2010) 30 VR 610 ('Hudson'). See 616-9 [27]-[37] in particular.

[70] The statement of Wood CJ at CL in R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38, 47 [48]-[49], cited in R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555, and referred to by Campbell JA in Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540, 572-3 [132].

[71] Cited in Hudson (2010) 30 VR 610, 618 [34].

[74] See s 6B of the Sentencing Act which defines a 'serious violent offender' relevantly as meaning an offender who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment.

[75] Nash [2013] VSCA 172 [55]. A table of appeal sentencing decisions for ICSI from 2011-2013 is attached to the judgment in Nash.

[76] Robbins v The Queen [2012] VSCA 34.

[77] Charles v The Queen [2011] VSCA 399.

[78] Taskiran v The Queen [2011] VSCA 358.

[79] Spanos v The Queen [2012] VSCA 253.

[80] Cedic v The Queen [2011] VSCA 258.

[81] Smith v The Queen [2012] VSCA 133.

[82] El Tahir v The Queen [2011] VSCA 46.

[83] DPP v Anderson [2013] VSCA 45.

[84] Frost v The Queen [2012] VSCA 282.

[85] Abdifar v The Queen [2012] VSCA 66.

[86] NCH v The Queen [2012] VSCA 129.

[87] Kavanagh v The Queen [2011] VSCA 234.

[89] Nettle JA (with whom Winneke P and Batt JA agreed).

[91] [2014] VSCA 97 (Neave JA and Kyrou AJA).

[92] I note that here there is only one charge of ICSI and one charge of ICI.

[93] See [48] above.

[94] See [34] above.

Tasevski v The Queen [2014] VSCA 135

At a glance

Court

Decision date

Before

Source

Judgment (152 paragraphs)

Tasevski v The Queen [2014] VSCA 135 (27 June 2014)

Parties

Legislation Cited (1)

Cases Cited (7)