Xiberras v The Queen [2014] VSCA 170

2 On 12 November 2013, the appellant pleaded guilty in the County Court to an indictment containing one charge of theft[1] (charge 1) and one charge of intentionally causing serious injury[2] (charge 2), and to a summary charge of common assault.[3]

3 Following a plea, on 13 November 2013 the appellant was sentenced to be imprisoned for five (5) years' on the charge of intentionally causing serious injury (charge 2), 12 months on the charge of theft (charge 1), and one (1) month on the charge of common assault (summary charge). The sentence of one (1) month on the summary charge, and six (6) months of the sentence on charge 1, were ordered to be served cumulatively with the sentence on charge 2, leading to a total effective sentence of five (5) years and seven (7) months' imprisonment, upon which a non-parole period of three (3) years and 11 months' imprisonment was fixed.

4 By leave of a judge of this Court granted on 21 March 2014, the appellant appeals on grounds 1, 4 and 5 as set out below. Leave was refused on grounds 2 and 3, and the appellant has sought to renew his application for leave on those grounds.

1. The sentence imposed is manifestly excessive in light of the sentencing judge's

(a) Failure to moderate the sentence given that the appellant had already served a portion of his sentence and was 'significantly disturbed' by the knowledge of having to return to prison;

(b) failure to attach any or sufficient weight to the guilty plea; and

(c) failure to reflect the following findings in the sentence:

(i) the appellant's very limited prior history;

(ii) the fact that the appellant has clearly been specifically deterred by his experience of being on remand; and

(iii) the appellant's excellent future prospects.

1. The learned sentencing judge erred in sentencing on charge 2 on the basis that the assault was premeditated.
2. The learned sentencing judge erred in imposing the same sentences upon the appellant as upon his co-accused.
3. The sentence imposed on charge 1, and/or the order for cumulation relating to that sentence, was/were manifestly excessive.
4. The sentence imposed on the summary charge of assault, and/or the order for cumulation relating to that sentence, was/were manifestly excessive.

6 For the reasons that follow, I would refuse leave to appeal on ground 2, but grant it with respect to ground 3; would not uphold grounds 4 or 5; and would allow the appeal on grounds 1 and 3. As a result, I would fashion orders so as to sentence the appellant to a total effective sentence of five (5) years' imprisonment, upon which I would fix a non-parole period of three (3) years.

The appellant's offending, arrest, interview and committal

7 The appellant, who was aged 28 years at the time of the offending, owned and operated a concrete pumping business. He employed David Coad on a casual basis.

8 Prior to the offending, the appellant had known the victim, Paul Psaila, for a number of years. He had previously loaned Mr Psaila money.

9 On 11 August 2012 the appellant, Coad and another unknown male went to Mr Psaila's residence at around midday. The appellant grabbed Mr Psaila's throat and verbally threatened him (summary charge, common assault). He then unplugged some electrical goods and loaded them into his utility. Upon leaving the residence, Coad drove away in Mr Psaila's car, the ownership of which Mr Psaila sometime later transferred to the appellant by leaving the relevant VicRoads form in his letterbox.

10 About six weeks after the first assault on Mr Psaila, on 22 September 2012, he received several text messages from the appellant demanding money and goods. The text demanded that the money and goods be provided by that afternoon, 'or we are coming to see you'.

11 On 28 September 2012, Mr Psaila arrived home at about 6:30pm. He noticed that he had several missed calls from the appellant on his telephone. As Mr Psaila entered his house, the appellant and Coad entered through the open garage door and commenced punching him to the head. As the two were hitting the victim, the appellant picked up a wooden baton and struck the victim on the shoulders and back. During the attack on him, Mr Psaila was variously punched, kicked and hit with the baton, and ultimately lost consciousness (charge 2, intentionally causing serious injury). Before leaving, the appellant and co-offender stole several items from the victim's home (charge 1, theft).

12 As a result of the attack, Mr Psaila sustained significant facial swelling, bilateral periororbital bruising, a fractured mandible and bilateral rib fractures. He was hospitalised for four days, and has undergone two sets of surgery (with a third planned) in an effort to repair the mandible.

13 Police arrested the appellant on 1 October 2012. During a record of interview he stated that he had loaned the victim between $2,600 and $3,000 while he was out of work as he was going to be evicted from his house and had a 12 year old son. The appellant had sold the victim's car in attempt to recover the full amount, but only recovered $1,200.

14 Both the appellant and Coad entered pleas of guilty at committal on 9 April 2013, prior to any witnesses being called.

15 On 7 December 2012, the appellant was granted bail after having spent 67 days in custody following his arrest.

16 In the course of the plea hearing, counsel for the appellant submitted that the appellant's offending can be summarised as physically confronting the victim on two occasions after failing to control his anger and frustration when the victim failed to repay the money he owed. Although the appellant might have been the ring-leader, Coad's prior history, which led to him being sentenced as a serious violent offender, created an imbalance in the sentencing considerations between them. The appellant's prospects of rehabilitation, it was submitted, could be regarded as good. He was a family-oriented person in stable, long standing relationship with his partner, Ms Grybowicz, with whom he has two children, respectively aged four years and two months. The appellant services the mortgage over the family home; and has owned and operated a concrete pumping business for eight years, employing one employee.

17 Prior to the offending, so it was submitted, the appellant had sought to address anger management issues through counselling, but found he was not being helped.

18 He had applied for bail on 7 December 2012 at his partner's urging, because she was struggling to care for their children and financially support the family on her own. Counsel put that each day following his release on bail was 'psychologically torturous' for the appellant, knowing that his return to custody was imminent. It was submitted that the impact of the appellant having being on released on bail, while at the same time facing the prospect of returning to prison, should be regarded as a psychological extension of the term of imprisonment. Any sentence passed should be ameliorated to reflect this aspect.

19 A report from a consulting and forensic psychologist, Patrick Newton, was tendered. Mr Newton reported that the appellant suffered from anxiety and an interpersonal nature which was characterised by 'robust assertiveness' where he was unlikely to back down in situations of confrontation. The appellant possessed a 'concrete, unsophisticated approach to the world'. He had difficulty identifying the physical signs that his irritation or anger was growing in intensity.

20 The appellant's partner, Dominika Grybowicz, gave evidence. She spoke of the emotional impact she had observed in the appellant during his time in custody, her struggles with caring for the family on her own and the difficulty the appellant encountered dealing with the prospect of returning to gaol. Ms Grybowicz described the appellant as a supportive husband and family-oriented person, who was of previous good character, and who was remorseful. The appellant had been productive during his time on bail, working and helping with the care of the children.

21 An employee of the appellant's, Matthew Creagh, gave evidence as to the appellant's daily expressions of remorse about what had occurred and the injuries he had caused to the victim. At the time of the offending the appellant was experiencing financial difficulties as business was quiet. Gaol had clearly had an impact on the appellant, who was quieter and less confident after his release.

22 A friend and former employee, Ryan Ferguson, also gave evidence. Following the initial period of his incarceration, the appellant seemed 'a completely different person. Mr Ferguson said that the appellant expressed significant remorse and empathy for the victim. The return to gaol, and the need to support his family whilst imprisoned, occupied much his thoughts. The appellant entered a plea at the earliest opportunity prior to the cross examination of witnesses at the committal.

23 Counsel submitted that the appellant had no matters pending, had only one prior court appearance which involved growing cannabis.

24 Any further term of imprisonment imposed on the appellant, counsel argued, should be tempered in light of the 'protracted gaol experience' resulting from the appellant having been released on bail only to be returned to custody.

25 The prosecutor conceded that the appellant had greater prospects of rehabilitation than Coad, although in balancing the prior history of Coad against the role of the appellant, it is appropriate that both be sentenced equally. Protection of the community, it was submitted, was the principal sentencing consideration in this case. The offending had a significant impact on the victim, which included him having had two operations on his jaw with a further to follow.

26 The sentencing judge took account of the fact that the victim was unable to return to his previous employment, suffers ongoing pain requiring medication and can no longer support himself financially without help. Mr Psaila is currently receiving ongoing psychological treatment and prescribed anti-depressant medication. He wakes in the night after dreaming of the attacks. The physical and emotional strain make it almost impossible to get back to his former life.

27 His Honour observed that he offending was serious. The appellant had lied to police and attempted to minimise his role.

28 The judge observed that the appellant had a very limited prior criminal history. He had only one prior court appearance for minor cannabis offences and theft, for which he received an aggregate fine of $500. Further, the sentencing judge accepted the appellant's personal history as described in the report of the psychologist, Patrick Newton, the salient features of which were:

• the appellant had been operating his own concrete pumping business for in excess of eight years;

• he had been in a long term de facto relationship with Ms Grybowicz (since 2004) which produced their two children (aged 4 years and 2 months respectively);

• the appellant had a lengthy history of cannabis use which began when he was 12 years of age and continued up until 2013;

• he had experienced psychological issues in the past including anxiety and interpersonal trust issues for which he sought assistance from Headspace;

• the appellant had expressed remorse for his behaviour towards the victim during his discussions with Mr Newton;

• disrupted education and poor literacy contributed to the appellant's unsophisticated coping mechanisms and emotional volatility; and

• the appellant has shown a willingness to engage in treatment to address his behaviour.

29 It was observed that a 'considerable number of impressive personal references' had been tendered. They supported a finding that the appellant is a hard-working person who had supported his extended family and that of his partner. The appellant had taken steps to rehabilitate himself. Significantly, the judge thought it unlikely that he would reoffend. The appellant was, the judge said, significantly disturbed by the knowledge of returning to custody after a period of time on remand.

30 In the judge's view, the appellant's plea of guilty was entered at the earliest opportunity. It was accompanied by genuine remorse. Moreover, the appellant was entitled to an appropriate utilitarian discount.

31 The appellant had excellent prospects of rehabilitation in light of his lack of prior or subsequent offences, strong family support, solid work history, good work ethic, stability in his employment and relationship, insight into his personal issues and a desire to deal with them.

32 As to the offending, the judge described it as serious. The attack on 28 September 2012 was vicious and protracted, and had long-lasting consequences for the victim. The judge described the appellant as being the 'instigator and leader', but he and Coad were involved in a 'truly joint criminal enterprise'. They were both 'equally culpable'. Balancing the appellant's role and age against Coad's prior criminal history, the judge proposed to treat both 'equally'.

33 Ground 2 is a complaint that the judge erred in finding that the attack on 28 September 2012 was premeditated. This ground wholly lacks merit.

34 Quite apart from the fact that no finding of premeditation appears in the judge's reasons for sentence, it seems to me that an inference that the attack was premeditated would plainly have been open. The contents of the text message of 22 September 2012, coupled with the immediate physical assault on 28 September 2012 unaccompanied by any preliminaries, would amply justify such a finding.

35 Ground 4 claims that the sentence on charge 1, theft, is manifestly excessive, and that the order for cumulation resulted in a manifestly excessive sentence; and ground 5 makes the same claims for the summary charge, common assault. Neither ground can be upheld.

36 The assault on 11 August 2012 was perpetrated in the victim's own home, where he was entitled to feel safe. He was grabbed by the throat and threatened by the appellant, who was in the company of others. Acknowledging that the maximum sentence of imprisonment available is one of three (3) months, I cannot see that the sentence of one (1) month might justifiably be described as excessive. Further, given that it was an entirely separate incident of violence to the incidents on 28 September 2012 (although the motivation might have been similar), it was appropriate to cumulate the sentence on this charge with the sentence on charge 2.

37 Similarly, given that the theft, charge 1, was committed after the hapless victim was rendered unconscious, it was an unpleasant offence. The appellant was possibly fortunate that he was not charged with robbery. A sentence of 12 months' imprisonment was, in the circumstances, warranted, as was partial cumulation. Although I do not think that it was an error to cumulate six (6) months of the sentence on charge 1 with that on charge 2, as will become clear, in the exercise of the resentencing discretion, I intend to order slightly more moderate cumulation.

38 It is convenient to consider grounds 1 and 3 together.

39 There were significant differences between the appellant's antecedents and those of his co-offender, Coad, which in my opinion are not reflected in the sentence passed on the appellant with respect to charge 2, intentionally causing serious injury. Coad, who was aged 24 at the time of the offending, had a prior conviction for intentionally causing serious injury. He had received a suspended sentence which he later breached. Moreover, he fell to be sentenced as a serious violent offender.[4] His status as a serious violent offender raised different sentencing imperatives. Protection of the community from him was thus the 'principal purpose' for which the sentence was to be imposed.[5] Coad also had prior convictions for sexual penetration of a child under 16 years, breaching an intervention order, failing to answer bail, dishonesty offences, destruction of property, failing to comply with a community based order and a host of traffic offences. The sentence imposed in this case was not the first time he had been imprisoned.

40 By way of contrast, the appellant had a relatively minor drug conviction, related to his use of cannabis, which had resulted in a modest fine.

41 Given that the trial judge found the offending to be a 'truly joint enterprise' in which the appellant and Coad were 'equally culpable', I cannot see that the appellant's more favourable antecedents are reflected in the sentence imposed. Coad was not, of course, to be again punished for his prior convictions, but he was not entitled to the leniency that might otherwise have flown from an absence of prior convictions. The appellant, on the other hand, had a legitimate expectation that his absence of prior convictions might lead to him being treated more favourably than his co-offender. That expectation was not realised. In so concluding, I have not lost sight of the respondent's submission that, by describing the two as equally culpable, his Honour was in effect conveying that the appellant's more significant role in the offending was cancelled out by Coad's more significant prior criminal history. Nonetheless, in my view the appellant's antecedents were not given sufficient weight in the exercise of the sentencing discretion.[6] The circumstances of the appellant and Coad were different in important respects, and required different outcomes.[7]

42 For these reasons, in my opinion ground 3 is made out.

43 Additionally, although I would not uphold every 'particular' of ground 1, in my opinion its central theme - that the sentence is manifestly excessive - has substance.

44 The circumstances of charge 2 were very serious. A man was attacked by two men in his own home and beaten senseless by two individuals acting in concert, all because of a relatively minor debt. Fists, feet and a weapon were used. The victim suffered facial injuries - including a fractured jaw for which he has had necessary surgical intervention - and broken ribs. Thus general deterrence was a very important consideration in the sentencing process, as were denunciation and just punishment.

45 As against that, the judge found in the appellant there were excellent prospects of rehabilitation. He was a hardworking and productive family man, with a good history. Unlike his co-offender, he had no prior convictions of relevance, and certainly none for violence. The judge thought it to be unlikely that he would ever reoffend.

46 Balancing those factors, I have concluded that the sentence imposed on charge 2 - and the resulting total effective sentence and non-parole period - are outside the range of those open in the proper exercise of the sentencing discretion.

47 The respondent's counsel submitted that, by resort to comparative sentencing cases, a sentence of five years' imprisonment for intentionally causing serious injury is in no respect unusual. Looked at in a vacuum, so much is true. But as I observed in Nash:[8]

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.

48 Whether a sentence is (or is not) manifestly excessive does not admit of sustained argument. Appellate intervention is not warranted unless the sentence is wholly outside the range of those open in the sound exercise of discretion. Weighing for myself the circumstances of the offence, and taking into account all aggravating and mitigating features, I have concluded that the sentence on charge 2 is outside the range of those properly open. The appellant must accordingly be resentenced.

49 I would set aside the sentence on charge 2, and impose instead a sentence of four (4) years and six months' imprisonment. I would confirm the sentence on the summary offence, common assault, and on charge 1, theft. I would order that the sentence on the summary offence, and five months of the sentence on charge 1, be served cumulatively with each other and with the sentence on charge 2. The total effective sentence is thus five (5) years' imprisonment, upon which I would fix a non-

parole period of three (3) years. I would confirm all other orders made by the County Court.

50 Insofar as it may be necessary to do so, I state that but for the pleas of guilty, I would have sentenced the appellant to be imprisoned for seven (7) years, upon which I would have fixed a non-parole period of five (5) years.[9]

[1] Crimes Act 1958, s 74. The maximum penalty is 10 years' imprisonment.

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

[3] Summary Offences Act 1966, s 23. The maximum penalty is 3 months' imprisonment or a fine of 15 penalty units.

[4] Sentencing Act 1991, Part 2A.

[5] Sentencing Act 1991, s 6D(a).

[6] Compare Miller v The Queen [2012] VSCA 270, a case to which the sentencing judge referred to in the course of the plea hearing.

[7] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, [28] (French CJ, Crennan and Keiffel JJ).

[8] Nash v The Queen [2013] VSCA 172, [55] (footnotes omitted). See also Jackson v The Queen [2013] VSCA 14, [34] (Priest JA); Tasevski v The Queen [2014] VSCA 135, [54] (Tate JA).

[9] Sentencing Act 1991, s 6AAA. See Youil v The Queen [2013] VSCA 228, [36] (Priest JA).