Dickman v The Queen (No 2) [2017] VSCA 351 (30 November 2017)

Last Updated: 1 December 2017

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0284

GLYN DICKMAN	Applicant
v
THE QUEEN (NO 2)	Respondent

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JUDGES:	WHELAN and PRIEST JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2015
DATE OF JUDGMENT:	30 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 351
JUDGMENT APPEALED FROM:	DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 21 November 2014 (Sentence)).

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury and threat to kill – Whether sentence manifestly excessive – Parity – Co-offender convicted of recklessly cause serious injury, threat to kill and other offences – Co-offender had relevant criminal history – Appeal allowed – Resentencing – Delay – Fresh evidence – Additional hardship resulting from reinstatement of conviction – R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Doyle QC with Mr B J Doyle	Barbaro Thilthorpe Lawyers
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

1 On 30 October 2014, following a trial in the County Court, the applicant was convicted of an offence of intentionally causing serious injury and an offence of making a threat to kill. The offences were committed on 27 September 2009. On 21 November 2014 the applicant was sentenced to a total effective term of imprisonment of eight years with a non-parole period of five years six months.

2 The applicant sought leave to appeal his conviction and sentence. That application was heard by the Court of Appeal on 19 August 2015. In a judgment delivered on 23 November 2015^[1] the majority determined that leave to appeal against conviction should be granted, that the appeal should be allowed and the conviction quashed, and that there should be a new trial. The Director of Public Prosecutions (‘DPP’) sought and obtained special leave to appeal to the High Court. In a judgment of 21 June 2017 the High Court allowed the appeal, set aside the orders of the Court of Appeal and in their place ordered that the appeal against conviction be dismissed, and remitted the proceeding to this Court to determine the applicant’s application for leave to appeal against sentence.^[2]

3 Prior to the hearing before this Court on 19 August 2015 the applicant and the DPP had filed written cases concerning the application for leave to appeal against sentence and oral submissions were heard on 19 August 2015. Consequent upon the remission of the matter, the parties filed additional written submissions. The parties have not sought a further hearing.

4 It is now necessary to determine the application for leave to appeal against sentence.

Circumstances of the offending

5 The circumstances of the relevant offending were as follows.^[3]

6 In the early hours of the morning on 27 September 2009 Faisal Aakbari, an 18 year old German student travelling in Australia, drove into the Melbourne CBD. He unsuccessfully tried to gain entry to some nightclubs. He eventually attempted to gain entry to the Dallas Nightclub. Unwisely, as matters transpired, he falsely asserted to persons who appeared to be members of the Hell’s Angels at the entrance to the club that he was also a member. He was not in fact a member of the Hell’s Angels. One of the people to whom he made the false assertion of membership was Ali Chaouk. Chaouk was not a member of the Hell’s Angels himself at that time but he was a ‘hanger on’ which, it seems, meant he was being considered for membership or was at least able to ‘hang around’ and do things with or for members of the Hell’s Angels.^[4]

7 Mr Aakbari was taken inside the club where he met a number of people including one who was subsequently identified and referred to as ‘the old man’. The applicant was the old man. After a time Mr Aakbari drove with people other than the applicant and Ali Chaouk to the Hell’s Angels clubrooms in Thomastown. The applicant drove there separately with Ali Chaouk.

8 At the Hell’s Angels clubrooms the applicant questioned Mr Aakbari about his claim to be a member of the Hell’s Angels in Germany. Mr Aakbari’s responses were unsatisfactory. The applicant became increasingly angry, loud and aggressive. At one point he left and returned with a baseball bat.

9 The applicant’s sentencing judge described what happened next:

You were initially throwing the bat in your hands as you approached the victim and when you were close to the victim you struck him forcefully to the head with the baseball bat. The victim described the initial blow as a ‘really hard swing’. The victim felt as if you had struck him as hard as you could.^[5]

10 The victim fell to the ground and then regained his feet. The applicant repeatedly struck him on and around the head with the baseball bat. Mr Aakbari tried to block the blows and was struck on his arms. The applicant only stopped hitting the victim when the applicant ran out of breath. While bashing the victim, the applicant abused him accusing him of having falsely said he was a member of the Hell’s Angels.

11 According to the judge who sentenced Ali Chaouk, once the applicant ceased his attack, Chaouk kicked the victim in the chest and rammed a short wooden pole into his mouth.^[6] According to the judge who sentenced the applicant, Ali Chaouk also hit the victim in the face with the baseball bat and kicked him in the groin.^[7]

12 The applicant then approached the victim holding a large knife. He grabbed him by the hair, placed the knife against his throat, and said to him: ‘Don’t go to the police. Don’t go to the police otherwise I will kill you and your family’. The victim was afraid that he would cut his neck with the knife.

13 The victim was returned to his motor vehicle and he managed to drive to his sister’s house. He was then taken to the police and the hospital.

14 The victim suffered injury to his head, involving an extradural haematoma, a tear in the dura, bleeding on the surface of the brain and bruising of the brain. His medical treatment for the head injuries involved a craniotomy with draining of the blood clot, controlling of bleeding and repair of the dura. He has a post-operative scar. He also suffered a broken fibula, lacerations to the head, abrasions to his arms and legs, a loose tooth and a black eye.

The indictment, the verdicts, and the sentences imposed on the applicant

15 By an indictment filed in the County Court the applicant was charged with causing serious injury intentionally, causing serious injury recklessly, making a threat to kill, and theft. The charge of causing serious injury recklessly was an alternative to the charge of causing serious injury intentionally. The theft charge alleged that the applicant had stolen property from the victim of the assaults. The applicant was acquitted on that charge. He was convicted on the charges of intentionally causing serious injury and making a threat to kill. No verdict was taken on the alternative charge of recklessly causing serious injury.

16 The sentences then imposed, by the trial judge, Judge Coish, were as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Intentionally causing serious injury [contrary to s 16 of the Crimes Act 1958] —guilty verdict	20 years	7 years	Base
2.	Recklessly causing serious injury [alternative to charge 1, contrary to s 17 of the Crimes Act 1958]	—	No verdict taken	—
3.	Making a threat to kill [contrary to s 20 of the Crimes Act 1958] — guilty verdict	10 years	2 years	12 months
4.	Theft [contrary to s 74 of the Crimes Act 1958]		Not guilty verdict
Total Effective Sentence:		8 years imprisonment
Non-Parole Period:		5 years and 6 months imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		22 days
6AAA Statement: Not applicable
Other relevant orders: Pursuant to s 6F of the Sentencing Act 1991 the applicant was sentenced as a serious violent offender in respect of charge 3. Forfeiture and disposal orders.

Indictment, verdicts, and sentences imposed on the co-offender, Ali Chaouk

17 Ali Chaouk had gone to trial in the County Court some three years prior to the applicant before a different judge, Judge Mullaly. The circumstances in which the applicant came to be identified by the victim as one of the offenders involved in the incident on 27 September 2009 are set out in some detail in this Court’s judgment on the application for leave to appeal conviction.^[8] An identification of the applicant as ‘the old man’ was made by the victim in August 2011, at the time of Ali Chaouk’s trial.

18 Ali Chaouk was tried on one charge of intentionally causing serious injury, an alternative charge of recklessly causing serious injury, a charge of armed robbery, a charge of false imprisonment, and a charge of making a threat to kill. On 25 August 2011 the jury acquitted Chaouk on the charge of intentionally causing serious injury but convicted him on the charge of recklessly causing serious injury. He was also convicted on the charges of armed robbery, false imprisonment, and making a threat to kill.

19 After a plea, Ali Chaouk was sentenced by Judge Mullaly on 27 February 2012 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
2.	Recklessly causing serious injury [s 17 of the Crimes Act 1958]	15 years	3 years 9 months	Base
3.	Armed robbery [s 75A of the Crimes Act 1958]	25 years	1 year 6 months	6 months
4.	False imprisonment [s 320 of the Crimes Act 1958]	10 years	1 year 10 months	9 months
5.	Making a threat to kill [s 20 of the Crimes Act 1958]	10 years	1 year 10 months	9 months
Total Effective Sentence:		5 years 9 months
Non-Parole Period:		3 years 9 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		278 days
6AAA Statement: Not applicable
Other relevant orders: Disposal Order pursuant to section 78(1) of the Confiscation Act 1997. Declaration as to section 6F(1) of the Sentencing Act 1991 that Mr Chaouk be sentenced as a serious offender in respect of Charge 5.

Reasons for sentence — the applicant

20 In the reasons for sentence in relation to the applicant the sentencing judge initially set out the circumstances of the offending and set out the applicant’s personal circumstances. At the time of sentence he was 51 years of age and in a long term de facto relationship. He had three children. He had had a dysfunctional childhood. He had been educated to Year 10 level. He had an excellent work record.

21 The sentencing judge referred to the delay which had occurred between the offending on 27 September 2009 and the convictions. He accepted that the delay was not caused or contributed to the applicant but was attributable to the police investigation and to ‘subsequent court processes’ after the applicant had been charged in July 2012. The judge said delay was a factor in mitigation. He referred to testimonials and references which had been tendered and said that he had taken these into account.

22 At the time of sentence the applicant was awaiting a knee replacement operation. He also had a number of other medical conditions. The judge said these conditions were relevant to his personal circumstances. There was no evidence that the applicant would not be able to receive appropriate treatment in custody, that his time in custody would be more onerous as a result of these conditions, or that his medical conditions would be aggravated by incarceration.

23 The judge observed that the applicant was no longer a member of the Hell’s Angels. He assessed the applicant’s prospects of rehabilitation as ‘reasonable’.

24 In relation to the seriousness of the offending the sentencing judge said:

I am satisfied beyond reasonable doubt that you took the leading role in questioning the victim. You alone obtained a baseball bat and you then struck the victim. This was in the context of his false representation that he was a member of the Hells Angels. There is no evidence of any person directing or encouraging you to attack the victim with the baseball bat. I assess your moral culpability as high.^[9]

25 The judge expressed the opinion that this was a very serious example of the offence of causing serious injury intentionally.

26 In relation to the offence of threat to kill, the judge said:

I am also of the opinion that this was a serious example of the offence of making a threat to kill. You were armed with a knife, you made the threat whilst holding the knife to the victim’s throat, and this occurred after you had attacked the victim with a baseball bat, thereby demonstrating your preparedness to act in a most violent manner.^[10]

27 The applicant had prior convictions to which the judge referred. There had been five court appearances between 13 February 1985 and 7 August 2008. The applicant had convictions in Magistrates’ Courts in South Australia for driving offences, larceny and drug possession. He had been dealt with on one occasion without conviction for carrying an offensive weapon. More significantly, on 23 April 1992 at the Supreme Court of South Australia sitting at Port Augusta he had been convicted of an offence of taking part in the production of a controlled substance and had been sentenced to a term of imprisonment of four years with a non-parole period of two years. The judge observed that the applicant did not have prior convictions for offences of violence.

28 The sentencing judge addressed the issue of parity with Ali Chaouk as follows:

I have had regard to the principle of parity. The co-accused, Ali Chaouk, was found guilty of various offences on 25 August 2011. On 27 February 2012 he was sentenced by His Honour Judge Mullaly to three years and nine months imprisonment for recklessly cause serious injury, one year and ten months imprisonment for false imprisonment, one year and six months imprisonment for armed robbery and one year and ten months imprisonment for threat to kill. After orders for cumulation, the total effective sentence was five years and nine months, with a non-parole period of three years and nine months.

Whilst I have taken into account the principle of parity, and I have had regard to these sentences, the sentencing remarks of His Honour Judge Mullaly and subsequent matters in the Court of Appeal, there are, in my opinion, significant differences in your role and that of the co-accused, Ali Chaouk. Ali Chaouk was sentenced on the charge of recklessly cause serious injury on the basis of having aided and abetted you, and on the charge of threat to kill on the basis that he acted in concert with you.

Ali Chaouk was therefore sentenced on the lesser charge of recklessly cause serious injury and in respect of a lesser role than you. I do not accept the submission made on your behalf that Ali Chaouk played a [principal] role, albeit with different but generally equivalent culpability in respect of the assault. I find your role was significantly greater than Ali Chaouk and that you were the [principal] offender in respect of the offence of causing serious injury intentionally. There are also significant differences in the personal circumstances, antecedents and relevance of the principle of totality in respect of Ali Chaouk. I have taken all these matters into account.^[11]

Reasons for sentence — Ali Chaouk

29 When Ali Chaouk was sentenced the sentencing judge began his sentencing remarks by noting that Chaouk had been acquitted of the charge of intentionally causing serious injury. He then summarised the circumstances of the offending. The judge referred to the fact that the victim had approached Chaouk because of the clothes he was wearing outside the Dallas Nightclub that night. The sentencing judge said:

It seemed he did so because you were wearing clothing that Mr Aakbari thought was connected with the Hell’s Angels. In fact you were in the early stages of joining the Hell’s Angels Nomads Club. You were a recognised hanger on, a known category within the Hell’s Angels organisation for those who are being considered for membership or at least for someone who is able to hang around and do things with and for members of the Hell’s Angels.^[12]

30 In relation to Chaouk’s role in the offending, the sentencing judge described Chaouk’s own actions in the assault. He said Chaouk pushed a wooden pole into Mr Aakbari’s mouth and kicked him in the chest.^[13] A little later the judge said:

The Crown case at the trial was in respect of the recklessly cause serious injury that you acted in concert with the old man, or alternatively aided and abetted him, or alternatively committed acts yourself which amounted to recklessly causing serious injury. Likewise with the false imprisonment and making threats to kill Mr Aakbari’s family. The Crown case was that you acted in concert with others, intentionally aided and abetted others who committed those crimes, or you did and said the things that amounted to these crimes.

With respect to the armed robbery, the only basis the Crown went to the jury with was that you acted in concert with the old man in committing the crime of armed robbery.

After the verdict in the course of the plea process the prosecution took the stance that the jury’s verdict should be interpreted that you aided and abetted the old man in respect of the recklessly cause serious injury, but acted in concert with him and others in respect of the other offending.

There can be great difficulty interpreting jury verdicts. The Crown says here that in practical terms the problems are best dealt with by acknowledging that you played a lesser role in the offending than the old man. In the end I would accept that course.^[14]

31 Later in the reasons the sentencing judge said:

In this case I do not overlook the powerful imperative of doing what others in the Hell’s Angels wanted you to do. I acknowledge that your role was not central in particular in the infliction of the injuries, or it should be said of the whole ordeal endured by Mr Aakbari. Also you were not the central organiser though you were very active.^[15]

32 The sentencing judge said that this was a serious example of the crime of recklessly causing serious injury. The judge said:

The jury verdict was that you knew the probable consequences of the actions of the old man were to cause serious injury and you intentionally aided him in causing those serious injuries.^[16]

33 The sentencing judge said that the robbery at knifepoint was callous and that it related to the threats that were made because the victim’s personal details were in a wallet which was taken.

34 The sentencing judge set out Chaouk’s prior convictions in the Magistrates’ Court and the County Court for reckless conduct endangering serious injury, making threats to kill and recklessly causing injury.

35 The judge referred to Chaouk’s personal background. He was 32 years of age, married and with a young son. He had had an interrupted schooling and had been bullied. He had had little solid employment. His father had been imprisoned and had later been murdered.

36 Considerable evidence was given on the plea in relation to Chaouk’s intellectual capacity. The sentencing judge said:

In respect of your intellectual capacity there was much said about this during the course of the plea. On all the expert evidence, including information provided by your wife to Mr Drake, the senior clinical psychologist at Forensicare, I have no doubt that your intelligence is significantly compromised. Whether your IQ is precisely as Ms Testa said, or whether that is an under-estimate, given the absence of effort testing in the course of her testing, given the fact that it was conducted in a custodial setting, and given your level of depression, in the end I will do as the Court of Appeal said I should do in Verdins and that is not get bogged down in diagnostic labels including those that relate to intellectual disability or incapacity.^[17]

37 The judge also referred to expert evidence to the effect that Chaouk suffered from depression.

38 The judge concluded that both specific and general deterrence had to be moderated by reason of Chaouk’s low intellectual functioning and his depression, although he said that notwithstanding that moderation both factors continued to be ‘weighty’ matters.^[18]

39 Finally, the judge referred to the fact that Chaouk had been in custody since the day after the offences on 27 September 2009 but that only 254 days of that period could be declared as pre-sentence detention as his parole in relation to other matters had been cancelled because of his inability to comply with parole whilst in custody.

Proposed grounds of appeal

40 The sole proposed ground of appeal in the application for leave to appeal against sentence filed on the applicant’s behalf reads as follows:

The sentence is manifestly excessive in the light of the sentencing judge’s failure to give due weight to the following factors:

(1) delay;

(2) the need for parity with the co-offender Ali Chaouk;

(3) the appellant’s lack of relevant prior convictions;

(4) his regular employment history, and his supportive partner and family; and

(5) the appellant’s rehabilitation.

41 In the course of the hearing on 19 August 2015, counsel for the applicant focused on submissions as to parity. The applicant applied for leave to appeal on the discrete ground that the sentencing judge had failed to give due weight to the need for parity with the co-offender, Ali Chaouk. Counsel for the DPP did not oppose that application.

42 The application for leave, including the application in relation to the discrete parity ground, was argued on the basis that if leave were granted the Court would determine the consequent appeal forthwith.

43 After the decision of the High Court, the parties filed further written submissions in relation to the application. The further written submission on behalf of the applicant placed reliance upon delay and other matters to which the applicant has been subjected as a result of the appeal process. In particular, reliance was placed upon the stress and anxiety the applicant had suffered by virtue of the fact that he had been bailed after his successful appeal before this Court and had then been at liberty with the matter ‘hanging over his head’ until the DPP succeeded on the appeal.

44 An affidavit sworn by the applicant on 24 August 2017 concerning his circumstances between the Court of Appeal decision and the High Court decision was relied upon. The affidavit set out difficulties the applicant had had in obtaining employment, the fact that whilst at liberty he had undergone knee replacement surgery, and the general social and economic difficulties which he had experienced whilst awaiting final disposition of the matter. He deposed to what he described as ‘a constant state of anguish not knowing my fate’ whilst awaiting the outcome of the High Court appeal.

45 As it was not clear whether these matters were relied upon by the applicant solely in the event that the sentencing discretion was re-opened, or whether they were relied upon as fresh or new evidence, the Registry contacted the applicant for clarification. In response a further written submission was received in which the following additional ground of appeal was proposed:

In view of the fact that the applicant was released from custody between 28 November 2015 and 26 June 2017 and the consequential impact upon the applicant of now serving the unexpired balance of the original sentence:

(a) the sentence imposed by the sentencing judge was in error; and/or

(b) a reduction to the sentence is required in order to avoid a miscarriage of justice.

Submissions made

46 The submissions on behalf of the applicant focused on the issue of parity. It was submitted that the sentencing judge had misapprehended and misstated the position in characterising the applicant’s role as ‘significantly greater’ than that of Ali Chaouk. It was also submitted that the sentencing judge had failed to sufficiently take into account their differing personal circumstances, and in particular Chaouk’s relevant prior convictions. The circumstances arising as a consequence of the appeal process were said to be relevant and mitigating if the sentencing discretion was re-opened, and were also submitted to be admissible as ‘fresh evidence’ in accordance with the principles set out by Redlich JA in R v Nguyen (‘Nguyen’),^[19] or on a more general basis so as to avoid a miscarriage of justice. In addition to the matters the applicant had deposed to, it was submitted that it was relevant that the applicant will have to undergo the process of entry into prison and re-entry into society twice and that his eventual sentence end date has, in effect, been significantly extended.

47 On behalf of the respondent it was submitted that the sentencing judge’s conclusions were consistent with the evidence and that he had carefully considered the respective roles of the offenders, and their relevant personal circumstances. It was submitted that the matters relied upon in relation to events between this Court’s decision and the decision of the High Court did not constitute new or fresh evidence in the relevant sense.

Parity — applicable principles

48 A court of appeal may reduce a sentence not in itself manifestly excessive in order to avoid a ‘marked disparity’ with the sentence imposed on a co-offender.^[20]

49 An appellate court will intervene in such a case where it considers that the disparity is such as to give rise to a ‘justifiable sense of grievance’ when assessed by objective criteria.^[21] There will be no ‘justifiable sense of grievance’ unless, in the circumstances, it was not reasonably open to the sentencing judge to differentiate between the co-offenders in the way in which he or she did.^[22]

Parity — analysis

50 In my view the applicant has failed to establish that it was not open to the sentencing judge to differentiate between the offenders in the way in which he did. I have reached this conclusion for the following reasons.

(1) It was open to the sentencing judge to conclude that the applicant had had ‘the leading role’ in the offending and had had a ‘significantly greater role’ in the offending than Chaouk. The applicant began the assault. He did so with a baseball bat. He bashed the victim about the head with it until he was out of breath. The applicant was the one who obtained the knife and who held it to the victim’s throat. It is true that after the applicant had begun the assault and had continued it for some time, Chaouk also assaulted the victim. But it was open to the judge to conclude that the applicant was the leader and that his role was significantly greater.

(2) The jury in the applicant’s trial convicted him of intentionally causing serious injury. The jury in Chaouk’s trial acquitted him on that charge and found him guilty of the lesser charge of recklessly causing serious injury. The difference is significant. It was open to the judge to reflect that difference in the sentences, as he did.

(3) Chaouk had prior convictions for violence which the applicant did not have. The applicant had, however, served a previous substantial prison sentence.

(4) Both the applicant and Chaouk had had difficult upbringings.

(5) Chaouk was found by Judge Mullaly to have intellectual impairment and depression. These matters led him to moderate both specific and general deterrence in his case. No such considerations applied to the applicant.

(6) Finally, whilst Chaouk offended whilst on parole, the judge was required to have regard to the period of Chaouk’s incarceration due to his parole breach when considering the issue of totality.^[23] Of the 883 days Chaouk had spent in custody only 254 were declared as pre-sentence detention.

51 I would grant leave to appeal on the issue of parity as the matter was arguable, but I would dismiss the appeal.

Other proposed grounds — analysis

52 The contention that the sentences imposed were manifestly excessive was not arguable in my view and I would not grant leave to appeal on that ground. This was very serious offending which fully warranted the sentences imposed, particularly in circumstances where the applicant could not rely on the mitigating effect of a guilty plea.

53 I turn then to the evidence sought to be relied upon concerning the appeal process.

54 Where evidence which was not before the sentencing judge is sought to be relied upon on appeal a distinction is drawn in the authorities between evidence which had been available or in existence at the time of sentence but which had not been relied upon (sometimes called ‘new’ evidence), and evidence which had not been before the sentencing judge because it concerns events which have occurred since sentence (sometimes called ‘fresh’ evidence). Evidence concerning matters existing at or prior to sentence which was not before the sentencing judge will be admitted only if it is sufficiently compelling to demonstrate that there has been a miscarriage of justice.^[24] The principles to be applied in relation to the admission evidence of events since sentence were summarised by Redlich JA in Nguyen.^[25]

55 If the sentencing discretion had been re-opened because the parity ground was upheld, the impact of the appeal proceedings would have been relevant to the re-sentence.^[26] I have not reached that conclusion.

56 The circumstances sought to be relied upon here do not fit comfortably within the principles set out by Redlich JA in Nguyen, but I accept the submission made on behalf of the applicant that those principles should not be treated as if they were statutory requirements. For the purposes of this application, I am prepared to proceed on the basis that the relevant evidence might properly be relied upon if that

were shown to be necessary in order to avoid a miscarriage of justice. I do not consider that that is the position here.

57 I accept that the applicant has suffered uncertainty and anxiety.

58 Having said that, the applicant’s period out of custody can hardly be treated as a fundamentally negative experience, and in the applicant’s case it was not without some specific positive features. During that period he underwent knee replacement surgery which he says was completed successfully. He was at liberty for the birth of his second grandchild. The significance of the impact of the anxiety and uncertainty he suffered is also tempered to some extent by the fact that had the DPP not appealed, or if the appeal had failed, the applicant would have had to face a new trial. The applicant’s affidavit does not reveal the existence of any special circumstance beyond that which would be expected as a consequence of the appellate process.

59 In all the circumstances I would not grant leave to appeal on the proposed new ground.

Conclusion

60 I would grant leave to appeal on the discrete parity ground, but I would dismiss that appeal. I would otherwise refuse leave to appeal.

PRIEST JA

CROUCHER AJA:

Introduction

61 Following a trial in the County Court, on 30 October 2014 a jury convicted the applicant of intentionally causing serious injury^[27] (charge 1) and making a threat to

kill^[28] (charge 3).^[29]

62. On 21 November 2014, the trial judge sentenced the applicant to be imprisoned for seven years on charge 1, and for two years on charge 3. An order for cumulation resulted in a total effective sentence of eight years’ imprisonment, upon which a non-parole period of five years and six months was fixed.
63. The applicant sought leave to appeal against both conviction and sentence. Oral argument on both applications was heard by this Court on 19 August 2015.
64. On 23 November 2015, by a majority^[30] this Court granted leave to appeal against conviction and allowed the appeal.^[31] The applicant’s convictions were quashed and a new trial was ordered.
65. Subsequently, however, the High Court allowed an appeal by the Crown, the practical effect of which was to restore the applicant’s convictions (and sentence).^[32] The proceeding was remitted to this Court to determine the outstanding application for leave to appeal against sentence.
66. In our view, the application for leave to appeal against sentence should succeed, the appeal be allowed and the applicant be resentenced in the manner set out below.^[33]

Grounds of appeal

67 Initially, the applicant sought leave to appeal upon a single ground which contended that the sentence was manifestly excessive in light of the sentencing judge’s failure to give due weight to factors including delay; the applicant’s lack of relevant prior convictions; his ‘regular employment history, and his supportive partner and family’; his rehabilitation; and the ‘need for parity with the co-offender Ali Chaouk’. Given that it is inappropriate to shelter a specific complaint of disparity under the umbrella of a general ground asserting manifest excess, during the hearing on 19 August 2015, the applicant was given leave to rely upon a distinct ground of appeal concerning parity vis-à-vis Chaouk.

68 Furthermore, upon remittal to this Court, the applicant sought to rely on a further proposed ground of appeal as follows:

In view of the fact that the applicant was released from custody between 28 November 2015 and 26 June 2017 and the consequential impact upon the applicant of now serving the unexpired balance of the original sentence:

(a) the sentence imposed by the sentencing judge was in error; and/or

(b) a reduction to the sentence is required in order to avoid a miscarriage of justice.

69 We would grant leave to rely on the further ground.

The applicant’s offending

70. Before turning to the merits of the application, it is necessary to summarise the applicant’s offending.
71. On 27 September 2009, the applicant bashed the complainant, Faisal Aakbari (for convenience, ‘Aakbari’), with a baseball bat (charge 1) and, whilst armed with a knife, threatened to kill him and his family (charge 3). Although, at trial, the principal issue was whether the ‘old man’ whom Aakbari alleged had bashed him was the applicant, it must now be accepted that the applicant was indeed that ‘old man’.
72. In September 2009, Aakbari, aged 18 years, was on holiday in Australia from Germany. During the morning of 27 September 2009, Aakbari went to the Melbourne CBD, and attempted to gain entry to several nightclubs. At the entrance door to the Dallas Showgirls nightclub (‘Dallas’), he had a conversation with a number of members of the ‘Hells Angels Motorcycle Club’, in which, in an attempt to gain entry, he claimed to be a member of the Hells Angels. Ali Chaouk (‘Chaouk’), effectively working as security or doorman, was one of those to whom Aakbari spoke. Chaouk was a prospective member (or ‘hang around’) of the Hells Angels — and was wearing clothing that Aakbari thought was connected with the Hells Angels — whilst the applicant was a full member.
73. At 3.42 am, Aakbari was admitted to Dallas. He was taken upstairs and introduced to a number of other men, including the ‘old man’. The applicant then told Aakbari that they were going to go to ‘another club’ to ‘have fun over there’. Aakbari indicated that he did not want to go, but was given no choice. At 4.30 am, Aakbari and Chaouk, and two other men, left Dallas. Aakbari, in the company of other men whom he had met at Dallas, drove his vehicle to the Hells Angels clubrooms in Thomastown. Chaouk drove the applicant and an associate, Michael Gerrie, to the clubrooms in another vehicle.
74. At the clubrooms, Chaouk went behind the bar and pressed Aakbari with alcohol, which he refused. Aakbari was shown photos of Hells Angels members from overseas clubs. He was asked about his association with the Hells Angels and whether he recognised any of the people in the photographs, but was unable to identify any of the German members. At that point, the applicant became angry, loud and aggressive towards Aakbari. The applicant then left briefly. He returned with a baseball bat and struck Aakbari forcefully with the bat on the forehead near the right temple. As a result, Aakbari fell off the barstool on which he was sitting onto the floor. While he attempted to protect his head, Aakbari was struck multiple times on his arms and legs.
75. Once the applicant had stopped hitting Aakbari, Chaouk came around from the back of the bar carrying a short wooden pole. Chaouk insisted that Aakbari get up, and once he had done that, Chaouk pushed the end of the wooden pole into Aakbari’s mouth, loosening a tooth or teeth. As Chaouk did this, he was telling the applicant that that was how he should have gone about the assault. Chaouk then kicked Aakbari in the chest, knocking him down. It seems that, when Aakbari stood up, Chaouk hit him in the face with the baseball bat and kicked him in the groin. By this stage, Aakbari was bleeding from his head and mouth. Chaouk went away and returned with a garbage bag and told Aakbari to put his bloodstained clothing into the bag. Aakbari then was given a wet towel to clean his face and was told to clean the blood off the floor.
76. Unknown to Chaouk, at the time of the attack on Aakbari, his telephone was the subject of lawful interception by police involved in another investigation. Evidence gleaned from the intercepted telephone included background conversations between Chaouk and others around him — including Aakbari and the applicant — whilst the line was open. It was clear from that intercepted material that Chaouk and his associates did not believe Aakbari’s claim that he was a member of the Hells Angels. Indeed, some of the attack on Aakbari was recorded from calls intercepted from Chaouk’s telephone. Aakbari was heard to scream, ‘Oh my God, what’s happening?’. The applicant was heard to say, ‘Lying cunt,’ as Aakbari screamed, and then, ‘I mean, are you a Hells Angel?’. Aakbari begged the applicant to stop hitting him. He said he was hit ‘like an animal’, and that the applicant only stopped hitting him when he was tired and out of breath.
77. After Aakbari was given the towel, the applicant approached him with a large knife. He went behind Aakbari and grabbed him by the hair. As he held the knife to Aakbari’s throat he said, ‘Don’t go to the police or I will kill you and your family’. At about this time, Aakbari was robbed of his wallet and mobile phone (Chaouk being convicted of armed robbery in relation to these items). Another man came out of the motorcycle workshop adjacent to the clubhouse and told the attackers, ‘Let him go’.
78. After he was cleaned up, Aakbari was taken by Chaouk and others in his motor vehicle to an unknown location where he was left alone with his vehicle. He eventually made his way to hospital.
79. In the attack, Aakbari suffered multiple injuries, including an extradural haematoma; a tear in the dura (the lining of the brain); bleeding on the surface of the brain; bruising of the brain; a broken fibula; lacerations to the head; abrasions to his arms and legs; a loose tooth; and a black eye. Treatment included a craniotomy with draining of the blood clot, controlling of bleeding and repairing of the dura.
80. It is unnecessary to recount the detail of the police investigation, save to say that it was not until 23 August 2011 — almost two years after the attack upon him — that Aakbari was shown a number of photoboards by police and selected the applicant’s photograph (the image that he selected being the closest to his memory of what the ‘old man’ looked like).
81. At trial, the defence did not dispute that the incidents as alleged by Aakbari took place, but it was disputed that the ‘old man’ identified by Aakbari was the applicant.

The complaint that the sentence is manifestly excessive

82. All other things being equal, it could not properly be concluded that the individual sentences imposed upon the applicant, the degree of cumulation ordered, the total effective sentence or non-parole period, are manifestly excessive, given the gravity of the offending (including the injuries suffered by Aakbari, and the circumstances of their infliction) and other relevant features, including mitigating factors.
83. All other things are not, however, equal. As will be seen, we are of the view that there is unjustified disparity between Chaouk’s and the applicant’s sentences.

Parity

84. It will be remembered that the applicant was convicted of two charges, one of intentionally causing serious injury and one of making a threat to kill.

85 By way of contrast, following a trial in the County Court, on 25 August 2011, a jury found Chaouk guilty of four charges: recklessly causing serious injury, armed robbery, false imprisonment and making a threat to kill.

86. Ultimately, Chaouk was sentenced to be imprisoned for a total of five years and nine months, with a non-parole period of three years and nine months, according to the following table:

Charge	Offence		Sentence	Cumulation
2	Recklessly causing serious injury[34]		45 months	Base
3	Armed robbery[35]		18 months	6 months
4	False imprisonment[36]		22 months	9 months
5	Making a threat to kill[37], [38]		22 months	9 months
Total effective sentence		5 years and 9 months’ imprisonment
Non-parole period		3 years and 9 months
Other orders		Disposal order

87. The judge who sentenced Chaouk accepted a prosecution submission that Chaouk played a ‘lesser role in the offending than the old man’. Up to a point, we too would accept that submission. Hence, we accept that Chaouk played a lesser role in the physical assault on Aakbari. But not by much. Thus, after the applicant struck Aakbari with the bat, it was Chaouk who pushed the end of the wooden pole into Aakbari’s mouth — loosening teeth — whilst telling the applicant that that was how he should have gone about the assault. Chaouk then kicked Aakbari in the chest, knocking him down. He struck him with the bat and kicked him. In these circumstances, it is plain that Chaouk’s role went well beyond merely aiding and abetting the applicant. He was a major — and enthusiastic — participant in his own right in the overall attack on Aakbari. His involvement was, as was put by the applicant’s counsel, ‘far from fleeting or incidental’. He was not merely ‘swept along by or subservient to’ the applicant. And although it must be acknowledged that he was convicted of recklessly, rather than intentionally, causing serious injury, and that he did not initially strike Aakbari with the baseball bat, it is difficult to conclude that thereafter his role was of a lesser order of seriousness than the applicant’s. Self-evidently, the jury’s verdict means that Chaouk foresaw the probability that his acts would cause Aakbari serious injury.

88 Furthermore, quite apart from the injury and threat to kill charges, Chaouk was convicted of two further serious offences — armed robbery and false imprisonment — of which the applicant was not. The judge who sentenced Chaouk said that his armed robbery of Aakbari ‘was callous and also had ... chilling aspects’; and he described the false imprisonment as ‘a serious example of that offence’, ‘not greatly ameliorated because [Aakbari] was ultimately released’ (it being the fact that Chaouk remained involved with Aakbari until he was driven away from the club rooms and left alone at an unknown location).

89 Importantly, Chaouk has relevant prior convictions for violent offending, as to which the judge who sentenced him said:

Likewise I take into account in assessing the gravity of your offending your prior criminal history. You have prior convictions in the Magistrates’ Court and the County Court for reckless conduct endangering serious injury, making threats to kill, and recklessly causing injury seeing you sentenced to periods of imprisonment either wholly suspended or actually served. It is to be noted with respect to the wholly suspended sentences that you have breached those and require [sic.] to serve those sentences of imprisonment. I also consider all your criminal history as a matter to weigh up in respect of deterrence to you, your prospects for the future, and in particular whether you will take up the path of rehabilitation, and I take into account the need to protect the community from you.

90. By way of contrast, the applicant has no prior convictions for violence. The only prior court appearance that he has had which might be said to be even vaguely connected with violence is a conviction in 1998 for carrying an offensive weapon, for which he was fined $50 without conviction. Beyond that, the applicant has convictions in 1985 for larceny and drug possession, which resulted in fines; a conviction in 1991 for driving under the influence, for which he was fined and his licence was disqualified; and a conviction in 2008 for driving an unregistered vehicle, for which he received a small fine. The applicant’s most serious conviction was incurred in 1992 for taking part in the production of a controlled substance, for which he was imprisoned for four years, with a two-year non-parole period.
91. Not only does Chaouk — unlike the applicant — have a relevant history of violent offending for which he had previously been imprisoned, but he has a history of breaching court orders. Those two factors reflect adversely on his prospects of rehabilitation and his propensity for violence, and heighten the need for specific deterrence in his case.
92. Despite the fact that Chaouk was, unlike the applicant, also sentenced for armed robbery and false imprisonment, and despite the fact that Chaouk, unlike the applicant, had a very relevant prior history of violent offending and breaching court orders, when imposing sentence, the judge did not specifically advert to the relevance of either of these features. In his sentencing remarks, the judge said that in taking parity into account, he had paid regard to the sentences passed on Chaouk, the remarks of the judge who sentenced him and the remarks of the Court of Appeal. Having noted ‘significant differences’ in the applicant’s and Chaouk’s roles, the judge observed (somewhat enigmatically):

There are also significant differences in the personal circumstances, antecedents and relevance of the principle of totality in respect of Ali Chaouk. I have taken all these matters into account.

93. In our view, the fact that Chaouk may have played a slightly lesser role in the overall physical attack on Aakbari, and had been convicted of recklessly (rather than intentionally) causing serious injury, could not properly have justified differences of three years and three months between the serious injury sentences, two years and three months between the total effective sentences and one year and nine months between the non-parole periods. Indeed, in our view, the fact that Chaouk was additionally convicted of armed robbery and false imprisonment, in circumstances where he had significant prior convictions for violent offending (and had breached court-imposed sanctions), coupled with proper weighing of the other relevant considerations, should have dictated that any differences between the serious injury and total effective sentences and non-parole periods imposed on the two offenders be far less.

94 When discussing the principle of parity in Green,^[39] French CJ, Crennan and Kiefel JJ observed:^[40]

The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.

Their Honours also said:^[41]

Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’.^[42] The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:^[43]

the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity.^[44] The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.^[45]

95. For the reasons identified above, the marked disparity between the sentence imposed on Chaouk, and that imposed upon the applicant, is not justified by their differing roles in the overall offending, when proper regard is had to the other relevant factors that we have set out.
96. The applicant has made good the ground of appeal concerning parity. It is necessary to grant leave to appeal, allow the appeal and sentence the applicant afresh.

New evidence

97. In further written submissions delivered following the Court’s invitation made via the Registry on 26 October 2017, the applicant’s counsel sought to rely on new evidence.
98. It is to be noted that the applicant went into custody on 30 October 2014, following his conviction by the jury, and was sentenced on 21 November 2014. He remained in custody until 28 November 2015, when he was released on bail following this Court’s quashing of his convictions on 23 November 2015. The applicant remained at liberty until surrendering himself to the County Court on 26 June 2017 (the High Court having pronounced orders on 21 June 2017). He has been in custody since then.
99. The applicant relied on an affidavit sworn on 24 August 2017. With respect, it contains an account of the applicant’s circumstances which is apparently restrained and objective. It sets out the difficulties encountered by the applicant in twice having to confront the process of entering into and adjusting to imprisonment, and twice having to confront the process of re-entering and re-adjusting to society. This is new evidence in the sense that none of these matters could have been anticipated by the judge when originally passing sentence.

100 Relying on Nguyen,^[46] the respondent submitted in writing that the applicant could not bring himself within the proposition that ‘the evidence must demonstrate the true significance of facts in existence at the time of the sentence’. Counsel for the respondent also cited R v Smith,^[47] R v Eliasen,^[48] R v Rostom,^[49] R v WEF,^[50] R v Holland,^[51] R v McLachlan,^[52] R v SH^[53] and R v Babic,^[54] and submitted ‘that the applicant cannot bring himself within any of the examples [in these cases], but more importantly, cannot bring himself within the confines of the relevant proposition’ set out in Nguyen.

101. Notwithstanding the respondent’s submissions, it is, we think, legitimate to take into account the events that have occurred since the applicant’s original conviction in the consideration of the present application.
102. In another context, when speaking of fresh evidence, in McIntee^[55] King CJ observed:

The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.

103 It would be to ignore the justice of the situation if we were to ignore what has occurred since the applicant was first sentenced. In Wei Tang,^[56] the applicant had been convicted of, and imprisoned for, (then novel) slavery offences. On 29 June 2007, this Court, having upheld her appeal against her conviction, ordered that the convictions be quashed and that there be a retrial. The Director of Public Prosecutions appealed to the High Court, by special leave, from the decision, and on 28 August 2008, the High Court upheld the appeal, set aside the orders made by this Court and, in their place, ordered that Wei Tang’s appeal to this Court against conviction be dismissed. Albeit that the Court upon remittal from the High Court found specific sentencing error, such that the sentencing discretion was re-opened, the Court (Maxwell P, Buchanan and Vincent JJA) observed:^[57]

It requires little imagination to appreciate the emotional impact on a person in the applicant’s position of the events which have occurred. None of this alters in the slightest the gravity of the slavery offences of which she has been convicted. But, through no fault of her own, the applicant has been subject to criminal trial processes for four years, much of that time being taken up in the necessary process of appellate examination of these novel provisions. The additional hardship which that has imposed on her must, as a matter of fairness, be taken into account in determining what is a just sentence to impose on her.

104 Given that the parity ground is, however, made out — and the sentencing discretion must be exercised afresh — it is unnecessary to consider the ‘new evidence’ ground any further.

Conclusion

105 There is little point in rehearsing at length the mitigating features of the case. The applicant, now aged 54 years,^[58] has been gainfully employed throughout most of his adult life and has the support of his family. Prior to the instant offences, he had no history of violent offending. He has a number of medical conditions, including difficulties with his knees. There was inordinate delay in bringing the applicant’s case to trial — the offence occurred in late September 2009, he first being spoken to by police on 16 February 2010, but was not convicted until 30 October 2014 — and the anxiety caused by the application for special leave, the appeal to the High Court, and awaiting judgment, coupled with his release and re-incarceration, must have been very difficult for him.

106 Taking all relevant matters into account, we would sentence the applicant to be imprisoned for six years on charge 1 (intentionally causing serious injury), and for 22 months on charge 3 (making a threat to kill). We would order that nine months of the sentence on charge 3 be served cumulatively with the sentence on charge 1, resulting in a total effective sentence of six years and nine months’ imprisonment, and we would fix a non-parole period of four years and six months. It will be necessary to declare appropriate pre-sentence detention. Otherwise, we would confirm all other orders of the County Court.

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^[1] [2015] VSCA 311 (‘Court of Appeal Reasons’).

^[2] (2017) 344 ALR 474.

^[3] This summary is drawn from the Sentencing Reasons of Judge Coish in relation to the applicant: DPP v Dickman (Unreported, County Court of Victoria, Judge Coish, 21 November 2014) (‘Judge Coish Sentencing Reasons’), with some additions from the Sentencing Reasons of Judge Mullaly in relation to the co-offender, Ali Chaouk: DPP v Chaouk (Unreported, County Court of Victoria, Judge Mullaly, 27 February 2012 ) (‘Judge Mullaly Sentencing Reasons’).

^[4] Chaouk’s position within the group comes from Judge Mullaly Sentencing Reasons [5].

^[5] Judge Coish Sentencing Reasons [6].

^[6] Judge Mullaly Sentencing Reasons [15].

^[7] Judge Coish Sentencing Reasons [8].

^[8] Court of Appeal Reasons [47]–[55].

^[9] Judge Coish Sentencing Reasons [22].

^[10] Judge Coish Sentencing Reasons [29].

^[11] Judge Coish Sentencing Reasons [33]–[35].

^[12] Judge Mullaly Sentencing Reasons [5].

^[13] Ibid [15].

^[14] Ibid [20]–[23].

^[15] Ibid [54].

^[16] Ibid [25].

^[17] Ibid [44] (citations omitted).

^[18] Ibid [47]–[51].

^[19] [2006] VSCA 184 [36]–[38].

^[20] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474 quoting Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609–10 (Gibbs CJ).

^[21] Ibid.

^[22] McCloskey-Sharp v The Queen [2015] VSCA 87 [17].

^[23] R v Piacentino; R v Ahmad [2007] VSCA 49; (2007) 15 VR 501. It is not necessary to consider the differences in view as to whether regard is to be had to the entire prior sentence or only to the unexpired portion required to be served as a result of the breach: see McCartney v R [2012] VSCA 268; (2012) 38 VR 1; Waugh v R (2012) 38 VR 66 and Koumis v R [2013] VSCA 47; (2013) 44 VR 193.

^[24] Rehal v The Queen [2015] VSCA 81.

^[25] [2006] VSCA 184 [36].

^[26] R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332 and DPP v Afford [2017] VSCA 201.

^[27] Crimes Act 1958, s 16. The maximum penalty is 20 years’ imprisonment.

^[28] Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.

^[29] Charge 2, recklessly causing serious injury, was an alternative to the first charge. No verdict was taken on this charge.

^[30] Priest JA and Croucher AJA, Whelan JA dissenting.

^[31] Dickman v The Queen [2015] VSCA 311.

^[32] R v Dickman (2017) 344 ALR 474.

^[33] See [106] below.

^[34] Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.

^[35] Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.

^[36] Common law. By virtue of Crimes Act 1958, s 320, the maximum penalty is 10 years’ imprisonment.

^[37] Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.

^[38] Sentenced as a serious violent offender. See Sentencing Act 1991, s 6F.

^[39] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 (‘Green’).

^[40] Ibid 480 [45].

^[41] Ibid 474–5 [31].

^[42] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609–610 per Gibbs CJ.

^[43] [1984] HCA 46; (1984) 154 CLR 606 at 610.

^[44] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 323 per Gummow J; at 338 per Kirby J.

^[45] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 per Gibbs CJ.

^[46] R v Nguyen [2006] VSCA 184, [36] (‘Nguyen’).

^[47] (1987) 44 SASR 587.

^[48] (1991) 53 A Crim R 391.

^[49] [1996] VicRp 60; [1996] 2 VR 97.

^[50] [1998] 2 VR 385.

^[51] [2002] VSCA 118; (2002) 134 A Crim R 451.

^[52] [2004] VSCA 87; (2004) 8 VR 403.

^[53] [2006] VSCA 83.

^[54] [1998] 2 VR 79.

^[55] R v McIntee (1985) 38 SASR 432, 435.

^[56] R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332.

^[57] Ibid 347 [71].

^[58] His date of birth is 15 May 1963. Chaouk is aged approximately 37 years.