Valayamkandathil v The Queen [2010] VSCA 260

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

2 The appellant, Reno Valayamkandathil, pleaded guilty to a single count of causing serious injury recklessly. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced him to two years and six months imprisonment. He ordered that the appellant serve a period of 15 months before being eligible for parole.

3 Leave to appeal against sentence was granted on 25 June 2010. The grounds relied upon by the appellant are as follows:

1. The learned sentencing Judge erred in determining that 'considerable weight' had to be given to specific deterrence.
2. The learned sentencing Judge erred in failing to accord any weight in mitigation to three separate matters raised on the plea:

(a) the appellant's loss of opportunity to continue to reside and work in Australia;

(b) the delay between the offences and the sentence; and

(c) the evidence that the appellant, by reason of his mental state and personal situation, would find prison extremely difficult.

4 The third ground was not pursued at the hearing of the appeal.

5 The offence was committed in the early morning of 23 November 2007 in a flat in Footscray. The appellant, the victim, Anoop Rajan, and the two other occupants of the house had held a party in their lounge room and had drunk a considerable amount of alcohol.

6 At about 2 am, Mr Rajan decided to go to bed and left the lounge room. He had been in the midst of an argument with the appellant, who followed Mr Rajan into his bedroom and continued the argument. The disagreement concerned Mr Rajan's failure to pass on a phone message to the appellant. Mr Rajan apologised to the appellant and pushed him out of his room and back into the lounge room.

7 In the altercation which followed the appellant stabbed Mr Rajan numerous times with a knife he had only recently purchased, to use in his work as a chef. The appellant received some minor injuries, which included a bite on his torso. The fight only ended after Mr Rajan escaped to the bathroom and locked the door.

8 Mr Rajan was taken to hospital and underwent surgery for the stab wounds. The judge described the wounds, as observed by Dr Chris Chew in his report dated 22 January 2008, as follows:

Dr Chew says there are four significant stab wounds. He identifies each of those four, one being at the left periocular, five centimetre right shin, the left dorsal of the foot, three centimetres, left lateral foot six centimetres and small abrasions, lacerations to the left elbow and scapular region and ear and right posterior shoulder and temple. There is no neuro-vascular compromise.

... There are multiple stab wounds to the left face, to the limbs and as I just said, no neuro-vascular compromise and haemo-dynamically stable.

9 In his victim impact statement, Mr Rajan said 'I suffered serious physical injuries which include a permanent scar on my left temple. I also suffer from broken tendons on my left leg'. He also spoke of the psychological effects of the offending:

After this incident I am suffering from nightmares. The picture of the knife is flourishing on my mind when I close my eyes. I lost my confidence and felt terrible pain to explain to anyone who asks what happened. After this incident I am suffering from mood swings.

10 The appellant was 24 at the date of offending and 26 at the date of sentence. He had no prior convictions.

11 He was born in India where his family still resides and was brought up in a loving family environment. He had no history of drug or alcohol abuse.

12 Before arriving in Australia in March 2007, he had obtained a Bachelors degree in Information Systems and had worked whilst completing his degree. He obtained a student visa to come to Australia, and had almost completed a hospitality management course when he committed the offence.

13 While studying, the appellant worked in various restaurant kitchens, and in the 12 months prior to offending, he obtained part time employment in a major Melbourne restaurant where he was promoted from kitchen hand to chef.

14 A report prepared by Ms Pamela Matthews, a forensic psychologist, and dated 1 October 2009, was tendered on the appellant's behalf. Ms Matthews described him as demoralised because his passport had been taken and he had not completed all the work required for his course and was unsure if he would receive a certificate. She expressed the following opinion about the appellant's offending:

The matter before the Court appears 'to occur in the context of: alcohol abuse; tensions between house mates, and the psychosocial stress of: (a) studying and working and (b) being separated from family support structures and constraints.

[The appellant] does not present as someone who is inherently antisocial or violent but rather as someone who is in general passive in demeanour someone who experiences difficulty openly expressing and talking about his emotions, even in the face of severe provocation, until unexpectedly acting out in a violent manner. While the reaction seems to be disproportionate to the triggering events, the intensity of the behaviour is usually driven by repressed anger, stress and distress in response to an accumu1ation of wrongs and impositions; ie the straw that breaks the camels [sic] back.

15 As regards his risk of re-offending she estimated it to be 'very low in a general sense and in regard to any specific individual'.

16 She also said that he was likely to find imprisonment 'extremely difficult' given that he is a 'young man of good family in a strange country and without social supports'.

17 In his sentencing reasons his Honour referred to favourable references from the executive chef of a restaurant where the appellant had worked and from the Vice-President of the Federation of Indian Students in Australia.

18 Under this ground the appellant's counsel contended that the judge erred in finding that 'considerable weight' was required to be given to specific deterrence.[1] This was said to be inconsistent with his Honour's finding that the appellant had positive prospects of rehabilitation, and Ms Matthews' opinion that the appellant was remorseful and that his risk of re-offending was 'very low'.[2] Counsel also submitted that the fact that the appellant had previously been assaulted by the victim and had not retaliated reduced the weight which should be given to specific deterrence.

19 In reply, counsel for the Crown submitted that the gravity of the offence made it appropriate for the sentencing judge to emphasise both general and specific deterrence. He relied on the observations made by this Court in Winch v The Queen[3] about the seriousness of the offence of causing serious injury recklessly in the context of glassing (that is, in situations when the offender hits the victim in the face or head with a bottle).[4] He submitted that stabbing offences are particularly serious and that the sentence imposed in this case was at the lower end of the range as it applied prior to the decision in Winch.

20 In his sentencing reasons the judge correctly emphasised the importance of deterring others from using knives to inflict serious injury on others. [5] It is difficult to understand why his Honour also considered that specific deterrence should be given 'considerable weight' when he had found that the appellant had positive rehabilitative prospects, there was ample evidence that the appellant was remorseful, and the judge had accepted Ms Matthew's opinion that there was a very

low risk that the appellant would re-offend. In my opinion his Honour erred in taking this view. I therefore consider that this ground of appeal is made out.

21 This ground was directed at the judge's alleged error in failing to accord weight to three separate mitigating factors raised during the plea. These were:

(a) the fact that the applicant had lost the opportunity to stay in Australia;

(b) the delay of approximately two years between the commission of the offence and the imposition of a sentence; and

(c) the fact that the applicant's mental state would make imprisonment difficult for him.

Loss of opportunity to continue to reside and work in Australia

22 Counsel for the appellant submitted that the offender was placed on a bridging visa after he was charged with the offence and would be deported after he had served his sentence. The judge should have regarded his loss of opportunity to stay in Australia as a significant mitigating factor.[6]

23 During the plea hearing, the offender's counsel had relied on a letter of advice from the Civil Law Service and extracts from the Migration Act 1958 (Cth). The letter indicated that the offender's bridging visa would expire as soon as he was released from custody and he would then be placed in immigration detention and deported from Australia as soon as possible. Thus it was said that he had 'all but completely destroyed his hope of achieving permanent residency in Australia'.

24 Counsel for the Crown conceded that the likelihood of deportation can properly be taken into account in sentencing an offender.[7] However, it was submitted that the matters relied on during the appellant's plea hearing were insufficient to require the judge to treat the likelihood of deportation as a mitigating factor. Counsel relied on Guden v The Queen,[8] in support of the submission that it was necessary for the offender to lead evidence sufficient to permit a sensible quantification of the risk of deportation and to demonstrate that deportation in his/her case would in fact be a hardship.[9] Counsel had submitted that there was no evidence as to the appellant's intention to apply for permanent residency when he finished studying, or that it would be a hardship to him if he were deported.

25 In Guden this Court said that in the absence of evidence or appropriate concession by the Crown, there will be no error in a judge declining to take account of the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate the deportation in his or her case would in fact be a hardship.

26 In this case, evidence was put to his Honour at the plea hearing that the appellant would be deported from Australia when he finished serving his sentence. It was also said that the appellant had wanted to stay in Australia following completion of his studies.

27 It is trite law that the failure to refer to a factor relied on in mitigation does not necessarily amount to sentencing error. In R v Giakis,[10] the Court of Criminal Appeal said that:

A sentencing judge is not obliged to state in his reasons for sentence every single matter that he has taken into account, nor to give reasons for every single step that he takes.[11]

But where a factor is unusual and may carry weight in sentencing the offender,[12] the failure to explain how, if at all, it has been taken into account may amount to sentencing error.

28 The applicant has been in Australia since 2007, and was working in the hospitality industry before he committed the offence. His family had made considerable financial sacrifices to send him here. In these circumstances, I consider that his Honour should have considered this matter in his sentencing remarks and explained how it was taken into account as a mitigating factor. The failure to do so was a sentencing error.

29 Counsel for the appellant submitted that the delay of approximately two years between the offence and imposition of sentence should have been given weight as a mitigating factor. The appellant offered to plead guilty to the offence of recklessly causing serious injury on 23 April 2008 and the matter had been hanging over his head since his commission of the offence in November 2007. While he was on bail he did not commit any further offences. Counsel said that the appellant did his best to continue studying and working, but had felt demoralised and worried about his studies, because he was uncertain as to the outcome of his offending.

30 Counsel for the Crown submitted that the delay in this case was not exceptional. He conceded that it was a matter that was required to be taken into account by the sentencing judge but submitted that, in the circumstances of this case, it bore little weight.

31 In my opinion, his Honour did not err by failing to refer to the delay in the sentencing reasons. The fact that there was a delay was self-evident and the length of the delay did not require the judge to give it significant weight. The fact that the judge did not say anything about delay does not require the conclusion that this matter was overlooked and does not amount to sentencing error.[13]

Mental state and personal situation would make imprisonment extremely difficult

32 Counsel for the appellant relied on Ms Matthews' opinion that the appellant 'seemed moderately depressed at interview' and, as a young man in a strange company without social support, was likely to 'experience prison as extremely difficult'.

33 She submitted that although the offender's counsel referred to R v Verdins[14] during the plea hearing and relied on the deleterious effect that incarceration would have upon the offender's mental state, the judge made no reference to these matters in the course of his sentencing remarks.

34 Counsel for the Crown submitted that the effect of imprisonment on the appellant was adequately reflected in the sentence imposed.

35 In a passage in her report to which his Honour did not refer, Ms Matthews said that:

The writer ... would expect an exacerbation of his current mental state and would therefore recommend that the authorities are alerted to his potential for rapid decompensation.

36 Although Ms Matthews attributed the exacerbation of the appellant's mental state to a combination of factors, including both his mental condition and the fact that his family was in India, on balance I consider that his Honour should have given some weight to the fact that prison was likely to be more burdensome to the applicant. It is not clear from his sentencing reasons that he did so. I consider that his Honour's failure to do so also amounted to a sentencing error.

37 Counsel for the appellant submitted that this was not a cold blooded attack,[15] but aberrant behaviour caused by the appellant's loss of control when he and the victim were intoxicated and began arguing. The injuries occurred in the course of a scuffle and the appellant also suffered minor injuries, including a bite.[16] She relied on his Honour's finding that there was some provocation[17] and that the victim had not been 'open full and frank in his account of his actions in fighting',[18] and his Honour's suspicion that there was a 'little bit of self-preservation involved'.[19]

38 Counsel for the appellant also submitted that there were very strong mitigating factors in this case. As well as the matters to which I have already referred, this was a first offence and the appellant had not previously been violent. He had a good work and study history, was remorseful and had pleaded guilty. She submitted that whilst the nature of the offence and the injuries inflicted justified the imposition of a term of imprisonment, that term ought to have been substantially lower than that imposed, and, further, wholly suspended.

39 Counsel for the Crown contended that the sentence was at the lower end of the range.[20] The use of a knife to inflict these injuries on the victim made this a serious example of the offence. He said that the appellant was a trained chef who had used a kitchen knife to stab the victim repeatedly in response to a trivial slight. The appellant would have foreseen that very serious injury could result and persisted nonetheless.

40 Counsel for the appellant submitted that the sentence which had been imposed by his Honour adequately reflected the appellant's youth, the elements of provocation and other relevant matters.

41 In re-sentencing the appellant I have taken account of the remarks made by this Court in Winch about the seriousness of the offence of causing serious injury recklessly and the reason that it attracts a maximum penalty of 15 years' imprisonment. This is a case in which the offender

foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability.[21]

42 His Honour correctly described this as a 'reckless and stupid act'. However, there were also strong mitigating factors to which I have already referred.

43 The objective gravity of the offence calls for the applicant to be sentenced to an immediate term of imprisonment.[22] I would re-sentence the offender to 2 years' imprisonment and fix a non-parole period of 12 months' imprisonment. But for the plea of guilty, I would have imposed a sentence of 4 years' imprisonment and a non-parole period of 2 years and 6 months.

2. The sentence passed below is set aside. In lieu thereof the appellant is sentenced to be imprisoned for a period of two years.

3. It is ordered that the appellant serve a term of 12 months' imprisonment before he is eligible for parole.

4. It is declared that a period of 306 days is to be reckoned to have been served under the sentence. It is ordered that the fact that that declaration has been made and its contents be entered into the records of the court.

5. The orders made in the lower court for taking a forensic sample and for forfeiture are confirmed.

[1] (Unreported, County Court of Victoria, Judge Pilgrim, 2 December 2009) ('Reasons').

[3] [2010] VSCA 141 ('Winch').

[6] R v Kwon [2004] NSWCCA 456, [13] (Hulme J); R v Khem [2008] VSCA 136; (2008) 186 A Crim R 465, 471 (Pagone AJA).

[7] Guden v The Queen [2010] VSCA 196, [22] (Maxwell P, Bongiorno JA and Beach AJA).

[8] [2010] VSCA 196 ('Guden')

[10] [1988] VicRp 88; [1988] VR 973.

[11] Ibid 977 (Young CJ, Crockett and Marks JJ).

[12] See for example R v Wynd (Unreported, Court of Criminal Appeal, Crockett, Fullagar and Marks JJ, 23 June 1989).

[13] R v Pettingill (1985) 21 A Crim R 130, 133 (Cox J).

[14] [2007] VSCA 102; (2007) 16 VR 269.

[15] Cf DPP v Doncon [2003] VSCA 103, [8]-[9] (Callaway JA).

[20] Cf Winch [2010] VSCA 141, [19]-[22] (Maxwell P and Redlich JA).

[21] DPP v Castro [2006] VSCA 197, [13] (Coldrey AJA, with whom Callaway AP and Redlich JA agreed); DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 527 (Redlich JA) ('Fevaleaki'); R v Pota [2007] VSCA 198, [19] (Kaye AJA).

[22] Fevaleaki: [2006] VSCA 212; (2006) 165 A Crim R 524, 529; cf Winch [2010] VSCA 141, [52]-[53] (Maxwell P and Redlich JA).