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Nash v The Queen [2013] VSCA 172 (1 July 2013)

Last Updated: 2 July 2013

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0269

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Offender kicked kneeling victim in the face – Serious permanent disability caused – Driving whilst disqualified – Guilty plea – Sentenced to 7 years on first count and 1 year on second – Total effective sentence 7 years and 6 months, non-parole period 5 years and 3 months – Whether judge erred in characterising guilty plea as late – Whether judge reduced utilitarian benefit of plea because of strength of prosecution case – Mitigating effect of impaired mental functioning – Failure to take necessary medication – Intoxication with alcohol and drugs – Whether different sentence should be imposed – Whether sentence manifestly excessive – Consideration of current sentencing practices for intentionally causing serious injury – Appeal dismissed – Phillips v The Queen [2012] VSCA 140 applied – Criminal Procedure Act 2009 (Vic) s 281(1)(b).

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MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. I, too, would dismiss the appeal against sentence and, subject to what follows, I would do so for the reasons which his Honour gives.

1 This Court has very recently reaffirmed the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand. In Anderson v The Queen,[1] the Court (Redlich, Weinberg and Harper JJA) endorsed the statement by Redlich JA in Ashdown v The Queen that:

it is current sentencing practices, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge.^[2]

2 The Court also endorsed the following further passage from the judgment of Redlich JA in Ashdown:

Consistency in sentencing, fundamental to the administration of criminal justice, requires adherence to current sentencing practice unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.^[3]

3 In support of the ground of manifest excess, counsel for the present appellant drew attention to two decisions of this Court which, it was said, reflected current sentencing practice for ‘the relevant category of seriousness’ of the offence of intentionally causing serious injury (‘ICSI’). These decisions were said to demonstrate that the present sentence was outside the applicable sentencing range.

4 The first case was Jackson v The Queen,[4] where the sentence for ICSI was four years and six months’ imprisonment; the second was Cedic v The Queen,[5] where the sentence for ICSI was seven years and six months’ imprisonment. In essence, the submission was that the present case was comparable to Jackson, and quite different from Cedic, such that it was not reasonably open to the judge in the present case to impose a sentence of seven years on the count of ICSI.[6]

5 This was a perfectly proper submission, for the reasons given in Anderson and in Ashdown. This was not an impermissible attempt to argue for numerical equivalence, a course rightly deprecated in Hudson v The Queen.[7] Rather, the submission was directed at the identification of the applicable sentencing range by reference to current sentencing practice.[8]

6 For reasons which follow, however, I would reject the submission. A wider survey of recent decisions of this Court with respect to sentencing for ICSI reveals a high degree of variation in sentencing for this offence, within ‘the relevant category of seriousness’. (The table attached to these reasons is based on the decisions of this Court over the period 2011–2013 on appeals against sentence for ICSI. The decisions are helpfully collected and summarised in the Victorian Sentencing Manual published by the Judicial College of Victoria. To facilitate comparison, the key features of each case are included in the table.)

7 As will appear, a number of recent decisions involve sentences for ICSI of more than seven years, imposed for offending sufficiently comparable to the present to demonstrate that this sentence — though stern — was not outside the applicable range. I deal with these cases below.

8 At the same time, a number of other cases in the table involve sentences of four years or less for offending no less serious than the present. I refer, for example, to Kahya v The Queen (4 y),[9] Priestley v The Queen (4 y),[10] Kavanagh v The Queen (4 y),[11] Marshall v The Queen (3 y 6 m)[12] and DPP v Gerrard (3 y).[13] That there should be such variation in sentences is a matter of concern. Although the particular circumstances in which the offence is committed vary from case to case, mere factual differences could not account for such wide variations in sentence. Nor can the sentencing disparities be adequately explained by differences in the personal circumstances of the offenders.

9 The goal of consistency in sentencing was rightly described in Ashdown as ‘fundamental to the administration of criminal justice’.[14] Achieving that goal would seem to require the identification of features the presence or absence of which in a given case of ICSI will determine into which ‘category of seriousness’ the case falls. This should promote consistency in the application of the relevant legal principles, which means — as the High Court said in Hili v The Queen — ‘the treatment of like cases alike, and different cases differently’.[15]

10 A review of the cases summarised in the table reveals that the following matters are routinely taken into account by sentencing judges in assessing the gravity of particular instances of ICSI:

• the offender’s proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;^[16]
• the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
• how vulnerable the victim was;
• whether a weapon was used;
• how long the attack on the victim lasted; and
• whether the offender acted alone or in company.

11 The development of such a list of indicia should be conducive to consistency in sentencing and — hence — to public confidence in the criminal justice system. When one case was said to be more or less serious than another, it would be apparent on the face of the sentencing reasons why that was so. Enabling sentencing judges to provide a clearer explanation of how the seriousness of a particular offence has been assessed should reduce the scope for perceptions of inconsistent treatment as between one case and another and — hence — remove one of the main sources of sentence appeals.

12 The Parliament of Victoria evidently had something of this kind in mind when it authorised this Court, under s 6AC of the Sentencing Act 1991 (Vic), to give a guideline judgment setting out ‘the criteria by which a sentencing court is to determine the gravity of an offence’.[17] The time has come, in my view, for the Director of Public Prosecutions to consider inviting this Court, in an appropriate case, to deliver just such a guideline judgment. Failing such an invitation, this is a course which the Court itself may need to consider taking when an appropriate occasion arises.

Comparator cases

13 As already mentioned, the appellant relied on Jackson and Cedic. In Jackson, the offender:

launched a vicious and unprovoked attack upon his victim. He punched him to the head, causing him to fall to the ground where he lay motionless. He then delivered anything up to four kicks to the head and body, all of them directed at a man who was entirely helpless. The victim was hospitalised and suffered very serious injury, some it having residual and perhaps lasting effect.^[18]

Weinberg JA (with whom Maxwell P agreed) said that it was ‘a serious example of offending of this kind’.^[19] The chief mitigating factor relied on by the offender, who had no relevant prior convictions, was that there had been a lengthy delay (of some three years) between the date of the offending and the date of sentence, during which he had had the matter hanging over his head.^[20] In the view of the majority, the sentence of four years and six months was ‘moderate’, which showed that the mitigating effect of delay, in all its aspects, must have been given appropriate weight.^[21]

14 In Cedic, the offender punched the victim a number of times to the temple, knocking him unconscious. After the victim had fallen to the floor, the offender proceeded to kick him in the face, chest, ribs and groin and stomped on his face while verbally abusing him. In all, between 20 and 30 punches and kicks, and six ‘stomps’, were inflicted on the victim while he lay unconscious. The offender had prior convictions for violence. He had shown some remorse. The prolonged nature of the assault was an aggravating factor.

15 This Court rejected the complaint of manifest excess. Tate JA (with whom Buchanan and Ashley JJA agreed) said:

The particulars of the indictable offence are horrific. While the offence was not carried out in a public place, it was carried out in front of several children and the appellant’s partner, all of whom must have been terrified when the appellant threatened to ‘kill them all’. The persistent, unprovoked, prolonged and bloody attack on an unresponsive, unconscious man and the attempts by the appellant to break [the victim’s] nose and arm reveal the considerable degree of criminal culpability involved in the offending.

Furthermore, the offending has crippled [the victim] psychologically and financially in circumstances in which he was an innocent party.^[22]

16 As already mentioned, the submission for the present appellant was that his offence — involving one kick and several punches — was a good deal less serious than the attack in Cedic, and less serious — or, at least, no more serious — than the offending in Jackson. In addition, it was submitted, the present appellant had established to the satisfaction of the sentencing judge that his impaired mental functioning (as a result of severe depression) warranted sentencing discounts under Verdins principles 1, 3 and 5.[23] There was no equivalent circumstance in either Jackson or Cedic.

17 Consideration of current sentencing practice must, however, take account of the following additional comparator cases, as summarised in the Sentencing Manual:

• Robbins:^[24] the offender attacked his wife with a claw hammer, striking her three times on the back of her head with ‘enormous force’. The victim suffered devastating, life-threatening injuries, which have resulted in lifelong disabilities, including the loss of the sight in one eye. The offender had no prior convictions and showed ‘profound remorse’. He voluntarily surrendered to police. A sentence of 11 years’ imprisonment was upheld on appeal.
• Charles:^[25] the offender held the victim around the neck and repeatedly stabbed him in the stomach and back. His injuries were life-threatening and required surgical intervention, but he made a ‘miraculous recovery’. The offender had no prior convictions and had shown some remorse. Although Verdins did not apply, the judge took into account that the offender suffered from chronic depression and anxiety. The judge found that the offending was out of character and that the offender would find prison more burdensome because of his condition. On appeal, this Court upheld the sentence of nine years.
• Yang:^[26] the offender struck the victim to the face with a meat cleaver. He was acting for financial gain. The victim required plastic surgery and suffered permanent scarring, nerve damage, blurred vision and the possibility of permanent blindness. The offender suffered from a recurrent major depressive disorder and was ‘genuinely remorseful’. He had prior convictions for violence. It was likely he would have to serve his sentence in protection. A sentence of eight-and-a-half years was imposed by this Court in upholding a Director’s appeal.
• Nawrozi:^[27] the offender attacked the victim with a knife as she opened her front door. He stabbed her in the head several times, causing extensive head wounds. He had prior convictions for recklessly causing injury and assault. The sentence of eight years’ imprisonment for ICSI was not challenged on the appeal.
• Smith:^[28] the offender punched the victim repeatedly and stabbed him in the back. The offender had prior convictions but of limited relevance. The injuries were severe at the time, but apparently did not cause any permanent disability. On appeal to this Court, the sentence was reduced from nine years’ imprisonment to seven.

18 The present case was, in my opinion, a very serious instance of this offence, for the reasons which Priest JA has given. The similarities with the five cases referred to above are obvious. Not only was the appellant’s culpability high but the injuries inflicted, and the long term consequences for the victim, were severe and permanent. Almost total loss of hearing is a very serious disability. Moreover, although the appellant did not have prior convictions for violence, specific deterrence was an important sentencing consideration for other reasons, as Priest JA has explained.

19 Although the judge upheld aspects of the Verdins submission, those considerations would have justified only a very limited reduction in sentence. In particular, as to moral culpability, it was clear enough on the evidence before the judge that the appellant’s depressive condition was but one of several causes contributing to this ferocious attack. It was of much greater causal significance that he had stopped taking the medication which was controlling his depressive condition, and had consumed an excessive amount of alcohol and an excessive

amount of the prescription drug, Xanax. The expert witness called by the defence agreed that the combination of the alcohol and the Xanax would have disproportionately increased the appellant’s state of disinhibition, such that he could properly have been described as ‘a walking time bomb’ on the day of the offence.[29]

PRIEST JA:

Introduction

20 By leave granted by a judge of this Court on 24 April 2013, the appellant appeals against sentences imposed by a judge in the Trial Division on 1 November 2012.

21 In my opinion, the appeal should be dismissed. It is necessary that I state my reasons for that conclusion.

Charges, sentences and grounds of appeal

22 On 8 August 2012, the appellant pleaded guilty to a charge of intentionally causing serious injury.[30] He also pleaded guilty to charges for two summary offences[31] — driving a motor vehicle whilst disqualified[32] and using a drug of dependence (heroin).[33]

23 Following a plea hearing, which was conducted on 20 September 2012, the appellant was sentenced to be imprisoned for seven (7) years on the charge of intentionally causing serious injury, one (1) year on the charge of driving whilst disqualified and seven (7) days on the charge of using heroin. By cumulating six (6)

months of the sentence on the driving charge with that of causing serious injury, the sentencing judge arrived at a total effective sentence of seven (7) years and six (6) months imprisonment, on which he fixed a non-parole period of five (5) years and three (3) months.[34] The judge made a declaration under s 6AAA of the Sentencing Act 1991 that, but for the plea of guilty, he would have imposed a sentence of nine (9) years’ imprisonment with a non-parole period of six (6) years and three (3) months.

24 There are two grounds of appeal as follows:

1. The sentencing judge erred by failing to give sufficient weight to the appellant’s plea of guilty.
2. The individual sentences, total effective sentence and non-parole period are manifestly excessive.

The offending

25 It cannot be gainsaid that the offending on the main charge was extremely serious. The defenceless female victim was kicked in the face and punched repeatedly. It was an attack that the sentencing judge described as cowardly and despicable. Both epithets were apt.

26 It seems that in July and August 2011, the victim, Mrs Jean Payne, and her daughter, Erin Payne – who was the appellant’s girlfriend – were in dispute over a motor car. Erin Payne gave her mother a Ford TX5 coupe, and Mrs Payne gave her daughter a BA Ford Falcon, with a view to the appellant working on it. Subsequently, the TX5 had engine problems, prompting Mrs Payne to ask for her BA Falcon back. In the early stages of the dispute, Erin Payne and the appellant refused to return it.

27 Eventually agreement was reached to swap the cars so as to avoid any further difficulty between mother and daughter. It was agreed that Mrs Payne was to leave the keys to the TX5 in her letterbox, and Erin Payne at the same time would leave the keys for the BA Falcon in the same letterbox. The appellant was to leave the BA Falcon in Mrs Payne’s driveway.

28 The swap was arranged for 12 August 2011. Erin Payne drove another car to the street where her mother’s house was located, and the appellant drove the BA Falcon to the near vicinity. The appellant parked the BA Falcon around the corner in another street and Erin Payne parked her car one or two houses away from her mother’s house.

29 When her daughter arrived at her house, Mrs Payne saw that the BA Falcon had not been parked in the driveway pursuant to the arrangement. She was angry, and went outside to speak to her daughter. They started to argue and got into a scuffle. Mrs Payne had a broken piece of glass in her hand which she used to threaten her daughter. She demanded the return of her car. The two were screaming at each other, and went to the ground during the course of the scuffle. During these events the appellant was not present at Mrs Payne’s property.

30 After the two women released their hold on each other, Erin Payne returned to her car. She telephoned the appellant and told him that her mother had tried to stab her. After a short time, she spoke to the appellant again and said, ‘Don’t worry about the car, let’s just get out of here’.

31 A little later, while Mrs Payne was starting to stand up from where she had fallen to the ground in the course of the scuffle, she was approached by the appellant. As she turned to see the appellant nearing, he kicked her in the face, causing her to fall down onto the driveway. The appellant said, ‘I will kill you, you fucking cunt of a bitch ... you’re not getting the fucking car back’. Mrs Payne was punched by the appellant a number of times in the upper part of her body.

32 A neighbour of Mrs Payne’s, Glen Tapson, observed the crucial events. He saw the appellant run into the street where Mrs Payne’s house was located from a side street nearby. The appellant ran directly towards Mrs Payne. She was still sitting on the ground. By a ‘front forward kick’, the appellant kicked Mrs Payne directly in the face as she was looking towards him. Mr Tapson saw Mrs Payne fall sideways onto the concrete and hit her head, after which the appellant punched Mrs Payne in the head and all the way down her upper body. The appellant than ran off around the corner into the side street from where he had originally come.

33 Mrs Payne was lying on the concrete and not moving. She began asking for help, saying that she was hurt. She was trying to get up. Mr Tapson helped Mrs Payne sit up, as she had fallen back down after having tried to get up. He helped Mrs Payne to her feet. While he was leading her toward the entrance to her house Mrs Payne collapsed. Mr Tapson then asked his partner to call an ambulance. Mrs Payne was later admitted to the Alfred Hospital.

34 On Saturday, 13 August 2011, the appellant was arrested by police in relation to the attack the previous day. When interviewed, the appellant denied that he had assaulted Mrs Payne. He said that the previous day he and Erin Payne drove to Blackburn and purchased heroin. (He admitted to using drugs once or twice a week.) The appellant told the police that at about 8.30pm he and Erin Payne drove to Mrs Payne’s home in separate vehicles. He said he observed a fight between Mrs Payne and her daughter. Mrs Payne produced a broken bottle and attempted to stab her daughter. The appellant told the police that he did not get out of his vehicle at any stage. After the fight Erin Payne returned to her vehicle and they both drove off separately. The appellant said he had no further contact with Erin Payne. He admitted to driving whilst his licence was disqualified.

The impact on the victim

35 The appellant’s attack was brutal. It has had a profound effect on the victim.

36 At the Alfred Hospital Mrs Payne underwent surgery and was placed in an induced coma for several days. She had received the following injuries:

(a) right frontal scalp haematoma;

(b) abrasion to the left knee;

(c) buckle fracture of left third rib;

(d) displaced fracture of left fourth rib;

(e) displaced fracture left fifth rib;

(f) two part fractures of seventh rib; and

(g) left scapular tip fracture.

37 In her victim impact statement she described the emotional effects upon her. During the attack she thought she was going to die; she thought she was already dead; and she kept begging for it to stop. Now she is scared all the time. She is scared of enclosed spaces and of the dark. When she goes to the supermarket, she does not let anyone stand behind her. She used to be a friendly person and speak to everyone, but she has changed since the incident. She isolates herself and does not want to leave her home. She takes medication to help her sleep, but her sleep is constantly broken, and she wakes from nightmares, shaking. She is constantly tired. She is depressed, anxious and stressed.

38 As to the physical effects on her, the victim said that she was placed in the intensive care unit in a separate room for nine days before being moved into a general ward. Prior to the attack, she had undergone a hearing operation, but as a direct result of the kick to her head, bones were broken in both ears and she has now lost all hearing to her right ear and only has six per cent hearing to her left ear. She went through ‘hell’ with her recovery and she never knew such pain existed. She is in constant pain as the nerve ends are regrowing and the pain stretches from the left to the right side of her body. Due to ongoing pain in relation to her ribs, the doctor has told her that the breaks are overlapping and have rough edges. She has little balance and takes medication three times a day to assist her with her balance. Because she is unable to take any pressure around her ribcage this restricts the clothes she is able to wear.

The plea of guilty

39 The appellant was originally charged with intentionally causing serious injury. An additional charge of attempted murder was laid on 24 September 2011. There was a contested committal hearing held on 19 January 2012. In May 2012 the appellant, in response to the filed Crown Opening, admitted that he kicked Mrs Payne once, and admitted generally to punching her body. On 8 August 2012 the appellant pleaded guilty to the charge of intentionally causing serious injury, the prosecution having decided the previous day not to proceed with the attempted murder charge.

40 On the plea hearing, the prosecution submitted a sentencing range of six (6) to eight (8) years’ imprisonment, with a non parole period of three (3) to five and a half (5½) years, for the offence of intentionally causing serious injury; a sentence of 12 months’ imprisonment for driving whilst disqualified; and one of no more than seven (7) days’ for using a drug of dependence.

The first ground – the plea of guilty

41 The first ground of appeal claims that the judge failed to give sufficient weight to the plea of guilty. It is directed mainly to the sentence on the charge of intentionally causing serious injury.

42 In essence, it is submitted that ‘the sentencing judge used the strength of the Crown case impermissibly, by tempering the fact that the [appellant] pleaded guilty because the Crown case against him was strong’. There are three aspects to this submission. First, it is argued that ‘the strength of the Crown case was irrelevant to the discount to be allowed for the utilitarian benefit of the plea’. Secondly, it is contended ‘that the conditions did not justify the conclusion that the strength of the Crown case showed that the plea reflected only limited remorse’. Thirdly, it is submitted insufficient weight given to the plea of guilty as being a ‘late’ plea.

43 There is some force, in my opinion, in the submission that the judge characterised the plea of guilty in the circumstances of this case as ‘late’. Given that the prosecution apparently sought to maintain a charge of attempted murder until the day before the appellant pleaded guilty to the charges that he did, realistically his plea of guilty to intentionally causing serious injury cannot, in my view, be described as late. Yet it seems to me that his Honour at least tacitly accepted the prosecution’s submission — made with respect to the measure of remorse that might be discerned in the circumstances — that the plea was a late one.

44 Moreover, although the sentencing judge seemed to recognise the utilitarian value of the plea, nonetheless he diminished the weight to be given to the plea because the prosecution case was strong. He said:

I accept that there is a public benefit in your pleas. There is a material benefit to the State in not having to conduct a contested trial. There is also a benefit to the witnesses and to Mrs Payne by lessening the inconvenience, stress and trauma accompanying a contested trial. Your counsel submits that your plea of guilty is an indication of your remorse and thus will be conducive to your rehabilitation.

On the other hand, in view of the eyewitness account of the assault, the evidence against you was strong and to that extent the weight given to your plea of guilty is diminished.

45 If this passage is to be understood as diminishing the weight to be given to the utilitarian benefit of the plea of guilty because the prosecution case was strong, in my opinion his Honour has fallen into error. The strength of the prosecution case is irrelevant to the discount to be allowed for the utilitarian benefit of a plea because it does not bear on the objective benefits of the plea.[35]

46 It was open to the judge, however, to find only limited remorse. The appellant had denied any involvement in the assault when interviewed by police. And although Dr Cidoni’s had spoken of the appellant’s remorse, distress and regret, so long as he did not capriciously reject it, the judge was not bound to act on this evidence as to remorse.

47 In any event, in the circumstances of this case the sentencing judge was, in my opinion, wrong to characterise the plea as late. Error is thus shown. But in my view, despite the error, no different sentence should be imposed.[36] As will become clear when I come to consider the next ground, I do not think the sentence imposed to be excessive. Indeed, I regard it as proper in all of the circumstances. I would not impose any different sentence.

The second ground – manifestly excessive sentence

48 Although he had no prior convictions for violence, the appellant had an appalling driving record, which included three prior convictions for driving whilst disqualified and one for unlicensed driving. For these offences he had received suspended sentences of imprisonment and intensive corrections orders. At the time of the commission of the assault on Mrs Payne, he was undergoing a suspended sentence of imprisonment (which recently had been converted from a sentence of imprisonment to be served by way of home detention). He also had prior convictions for driving under the influence, exceeding the prescribed concentration of alcohol and a host of other driving offences. Courts had also previously dealt with him for burglary, theft and drug offences. In light of his record, the sentence of one year’s imprisonment on the charge of driving whilst disqualified was wholly appropriate. Although, of course, the appellant was not to be punished again for the prior offences, his history demonstrated a heightened need for specific deterrence. He had previously been dealt with leniently, but had continued to offend. Indeed, by driving on the day of the assault, he was doing so in defiance of a recently imposed court order. Moreover, cumulation of six months of that sentence on the sentence for intentionally causing serious injury gave recognition both to the discrete nature of that offending and to totality. It did not lead the total effective sentence to be manifestly excessive.

49 The appellant submits that that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Each of the sentences on the individual charges, the total effective sentence and non-parole period are embraced by this submission, although the main focus was on the sentence for intentionally causing serious injury. The appellant relies on the following factors:

• the plea of guilty;
• remorse;
• the absence of ‘pre-planning’;
• there is no history of violence;
• the appellant’s criminal history is limited to mainly driving offences;
• his good employment record;
• his struggle with mental health problems;
• there are reasonable prospects of rehabilitation;
• the risk of reoffending low;
• his constant struggle with heroin and depression over recent years;
• this is his first adult term of imprisonment; and
• the application of Verdins^[37] principles.

50 In my opinion, the concatenation of these factors does not lead to any conclusion other than that the individual sentences, total effective sentence and non-parole period are wholly appropriate.

51 The appellant is 30 years of age, and was 29 when he offended. He has been afflicted with mental health problems for several years. There is a family history of depression, and twice the appellant has attempted suicide. He has struggled with heroin addiction, and has been a polysubstance abuser.

52 A practising consultant forensic psychiatrist, Dr Anthony Cidoni, gave evidence on the plea hearing for the appellant. Much reliance was placed on his evidence. He diagnosed a major depressive disorder that has been characterised by recurrent depressive symptoms. Dr Cidoni thought that the appellant suffered from polysubstance abuse, including of opiates and amphetamines. He expressed the opinion that the appellant was a low risk of future violent offending. Dr Cidoni believed that imprisonment would have a strong deterrent effect. He also expressed the opinion that at the time of the offending the appellant was suffering from a significant amount of stress due to the conflict over the car, and that he had a pre-existing depression and anxiety condition. Those conditions combined with the appellant’s intoxication and medication meant that he was not able to control his behaviour or behave properly.

53 In Dr Cidoni’s opinion, the appellant was likely to experience imprisonment with greater difficulty than he otherwise might because of his pre-existing anxiety and depression condition. He did not believe that the appellant would receive appropriate treatment whilst in custody.

54 The appellant told Dr Cidoni that at the time of the offence he had consumed three quarters of a bottle of Canadian Club whisky, five to six 2 mg Xanax tablets and Alprazolam tablets, and 0.5 g of heroin. Dr Cidoni opined that the offending occurred in a particular set of circumstances, and that intoxication with substances, particularly Alprazolam or Xanax (which has an effect of disinhibition and impairing judgment), also contributed to the offending. He believed that this set of circumstances was peculiar and unlikely to occur again. Dr Cidoni believed that the risk of reoffending was low and the prospects of rehabilitation good.

55 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,[38] to head sentences of imprisonment in double figures at the high end.[39]

56 It has been often observed that whether a sentence is or is not manifestly excessive does not admit of much argument.[40] Sentencing judges instinctively synthesise all relevant factors and arrive at a sentence which they think appropriate. Appellate courts approach the task of assessing whether a sentence is manifestly — as opposed to merely arguably — excessive in the same way. Members of the appellate court synthesise all relevant factors.[41] Even should the appellate court regard the impugned sentence as stern, or even if the members of the court would not themselves have passed the same sentence, appellate intervention is not warranted unless the sentence is outside the range of those open in the sound exercise of discretion.[42]

57 Balancing, as best I am able, all relevant features, I am far from persuaded that the sentence is manifestly excessive. Indeed, as I have said, in my opinion it was proper. The offence of intentionally causing serious injury was a nasty manifestation of the offence which had severe consequences for the victim. For anyone to kick another in the face is, to say the least, deplorable. But when, as in this case, the kick is to the face of a frail woman by a male, committed in such a cowardly fashion,[43] the offence is particularly serious. In my opinion the offending is not much mitigated by the appellant’s personal circumstances.

58 The appellant’s attack was vicious and cruel. Any sentence imposed was required to punish the appellant in a manner and to an extent that was just in all the circumstances. Denunciation was important, as was the need for the sentence to reflect the need for general deterrence. The sentence passed properly balanced these factors, together with considerations of specific deterrence and prospects of rehabilitation. Mitigating features — including ‘Verdins’ considerations — were, in my opinion, given adequate weight.

Conclusion

59 For these reasons, the appeal should be dismissed.

COGHLAN JA:

60 I agree that the appeal should be dismissed for the reasons expressed by Priest JA.

Nash v The Queen – S APCR

Sentencing table — intentionally causing serious injury

Appeal decisions 2011–2013

^[1] [2013] VSCA 138 (‘Anderson’).

^[2]  [2011] VSCA 408 , [174] (‘Ashdown’) (emphasis added), cited in Anderson [2013] VSCA 138, [22].

^[3]  [2011] VSCA 408 , [191], cited in Anderson [2013] VSCA 138, [23]. Ashley JA agreed: Ashdown  [2011] VSCA 408 , [169].

^[4] [2013] VSCA 14 (‘Jackson’).

^[5] [2011] VSCA 258 (‘Cedic’).

^[6] See Clarkson v The Queen [2011] VSCA 157; (2011) 212 A Crim R 72, 95 [89].

^[7] (2010) 30 VR 610, 617–18 [31]–[33] (‘Hudson’).

^[8] For other examples of this kind of submission, see DPP v D D J [2009] VSCA 115; (2009) 22 VR 444, 456–8, [47]–[56] and Smith v The Queen [2012] VSCA 133, [13] (‘Smith’).

^[9] [2012] VSCA 67.

^[10] [2011] VSCA 378.

^[11] [2011] VSCA 234.

^[12] [2011] VSCA 130.

^[13] [2011] VSCA 200; (2011) 211 A Crim R 171.

^[14] Ashdown  [2011] VSCA 408 , [191].

^[15] [2010] HCA 45; (2010) 242 CLR 520, 535 [49].

^[16] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 466–7 [40]–[41].

^[17] Section 6AC(c).

^[18] Jackson [2013] VSCA 14, [4].

^[19] Ibid [13].

^[20] Ibid [27] (Priest JA).

^[21] Ibid [11].

^[22] Cedic [2011] VSCA 258, [30]–[31].

^[23] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

^[24] Robbins v The Queen [2012] VSCA 34.

^[25] Charles v The Queen [2011] VSCA 399.

^[26] DPP v Yang [2011] VSCA 161.

^[27] Nawrozi v The Queen [2012] VSCA 272.

^[28] Smith [2012] VSCA 133.

^[29] R v Nash [2012] VSC 507 (Robson J), [52]–[53] (‘Reasons’).

^[30] Crimes Act 1958 (Vic) s 16. The maximum penalty is 20 years’ imprisonment.

^[31] See Criminal Procedure Act 2009 (Vic) ss 242 and 243.

^[32] Road Safety Act 1986 (Vic) s 30(1). The maximum penalty is 2 years’ imprisonment or 240 penalty units.

^[33] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 75. The maximum penalty is 1 year imprisonment or 30 penalty units.

^[34] The sentence of seven days’ imprisonment was to be served concurrently with the other sentences.

^[35] Phillips v The Queen [2012] VSCA 140, [36] (3) (Redlich JA and Curtain AJA).

^[36] Criminal Procedure Act 2009 (Vic) s 281(1)(b).

^[37] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

^[38] For example, DPP v Gerrard [2011] VSCA 200; (2011) 211 A Crim R 171 (a three year suspended sentence for what is colloquially referred to as a ‘glassing’).

^[39] For example, Robbins v R [2012] VSCA 34 (an attack with a claw hammer, where on appeal a head sentence of 11 years’ imprisonment was upheld, but a non-parole period of seven years was substituted); DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457 (where sentences of 11½ years’ imprisonment, with non-parole periods of 9 years, against two respondents were substituted on appeal, for a savage attack on an innocent victim which resulted in catastrophic injuries).

40. ^[40] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R [2013] VSCA 44, [51]-[52]. See too Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, [6].

^[41] Ibid.

^[42] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671–672, [15].

^[43] Cf R v Hudson (2010) 30 VR 610.