SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0154

ANNE MARIE HART	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	MAXWELL P and WEINBERG JA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	23 July 2020	
DATE OF JUDGMENT:	31 July 2020	
MEDIUM NEUTRAL CITATION:	[2020] VSCA 194	
JUDGMENT APPEALED FROM:	[2019] VCC 879 (Judge Gaynor)	

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury (gross violence) – Intentionally cause serious injury – Armed robbery – Theft – Separate, unprovoked knife attacks – First attack committed when applicant 17 years old – Applicant not identified as offender until one year later – Sentenced to 7 years’ imprisonment, non-parole period 4 years – Whether manifestly excessive – Whether effect of delay given sufficient weight – Whether lost opportunity to be sentenced in Children’s Court – Whether appropriate weight given to rehabilitation – Extremely serious offending – Profound impact on victims – Prior conviction for gross violence offence – Sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Ms E Strugnell	James Dowsley & Associates	
			
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions	

MAXWELL P
WEINBERG JA:
	Summary
1	The applicant pleaded guilty to offences arising from two violent, unprovoked, knife attacks on defenceless individuals.  The first occurred on 21 December 2016, giving rise to charges of intentionally cause serious injury in circumstances of gross violence, and armed robbery.  The second occurred less than six months later, on 4 May 2017, resulting in charges of intentionally cause serious injury and theft.  
2	The applicant was sentenced to 4 years’ and 3 years’ imprisonment on the respective serious injury charges, 18 months on the armed robbery charge and 6 months on the theft charge.  With cumulation, the total effective sentence was 7 years’ imprisonment and a non-parole period of 4 years was fixed.  
3	The applicant now seeks leave to appeal against sentence on a single ground, namely, that the judge failed to take into account the effect of the delay in the prosecution of the charges arising from the December 2016 attack.  The applicant was only 17 when she committed those offences.  The contention on the plea, and again in this Court, was that if the charges had been laid, and the prosecution conducted, in a timely manner, the charges would have been able to be dealt with by the Children’s Court.
4	More generally, the applicant relies on uncontested evidence of her significant progress towards rehabilitation while on remand.  Given her youth, she contends, the judge should have given greater weight to her rehabilitation in the period between the offending and the date of sentence.  
5	For reasons which follow, leave to appeal must be refused.  As counsel for the applicant properly conceded, the complaint about weight had to be approached as a contention that the sentence was manifestly excessive.  As will appear, the judge gave careful consideration to the applicant’s rehabilitative efforts and to whether the December 2016 offending would have been dealt with in the Children’s Court had the prosecution initially been instituted there.  Given the seriousness of the offending, the profound impact on the victims and the applicant’s prior conviction for intentionally causing serious injury in circumstances of gross violence, it is not reasonably arguable that the sentence was outside the available range.
	Factual background
6	The applicant pleaded guilty to the charges set out in the below table and, on 14 June 2019, she was sentenced as follows:

Indictment J12379718	
Charge 
	Offence	Maximum	Sentence	Cumulation	
1.		Intentionally cause serious injury in circumstances of gross violence 	20 years	4 years	Base	
2.		Armed robbery 	25 years	18 months	12 months	
Total Effective Sentence for Indictment J12379718:
	5 years’ imprisonment (2 years’ imprisonment in relation to Indictment H11371899.1 to be served cumulatively upon this sentence)	
Indictment H11371899.1	
Charge 
	Offence	Maximum	Sentence	Cumulation	
1.		Intentionally cause serious injury 	20 years 	3 years 	Base	
2.		Theft 	10 years	6 months	2 months	
Related Summary Offence	
4.	Assault with weapon 

	15 penalty units or 3 months’ imprisonment	2 months	1 month	
Total Effective Sentence for Indictment H11371899.1:
	3 years and 3 months’ imprisonment (2 years to be served cumulatively upon the sentence imposed on J1379718)	
Combined Total Effective Sentence:  7 years’ imprisonment	
Non-Parole Period:  4 years’ imprisonment	
6AAA Statement:  9 years’ imprisonment, with non-parole period of 7 years	

December 2016 offending (Indictment J12379718)
7	The offending in relation to Indictment J12379718 occurred in 2016 when the applicant was 17.  In the early hours of 21 December 2016, the victim (‘SC’) finished work and was riding her bike home.  She was wearing a backpack which contained her wallet, personal cards and about $200.
8	At about 2.23 am SC was riding through North Melbourne.  She was riding on the footpath when she saw the applicant and two men walking on the road.  As SC rode her bike past them, one of the men called out to her, saying ‘Excuse me’ twice.  She ignored him and kept riding.  The applicant then also called out ‘Excuse me’ twice.  SC thought that the three of them were lost and stopped her bike to see if she could help.
9	The applicant approached SC’s left side, walked in front of her and then grabbed her in a headlock with her left arm.  She began stabbing SC in the face with a serrated fishing knife.  The applicant stabbed SC multiple times to the face, neck and chest.  (Charge 1 — causing serious injury intentionally in circumstances of gross violence.)  One of the men grabbed SC’s backpack from her back, and all three offenders left the area.  (Charge 2 — armed robbery.) 
10	The trial judge described SC as having suffered ‘really terrible, serious injuries’, as follows:
•	a full-thickness, deep-penetrating open wound extending down the jawbone in the front from her lower lip to her neck;
•	a 4 centimetre open wound below the right ear, reaching into the back of her neck;
•	an open wound in the front of her right ear and multiple wounds behind her right ear;
•	a deep laceration to the back of her right forearm, a slash to her right wrist, three open wounds to her right-upper arm close to the shoulder;
•	a 4 centimetre deep wound to the front of the upper-right chest near the collarbone; 
•	an open wound in her right shoulder and shoulder blade area; 
•	bleeding and blood collection in soft tissue around her right eye; a corneal laceration to the right eye, a globe rupture of the right eye and fluid accumulation to the right cornea;  and 
•	nerve injury with complete severing of the nerve providing sensory innervation for the skin around the outer ear and bruising to the brain. 
11	SC required emergency specialist eye surgery to repair her eye globe and cornea;  emergency plastic surgery;  and nerve repair and reconnection by stitching.  She has ongoing medical issues, with a risk of blindness to her right eye and physical scarring.  As a result of the attack, SC became afraid to live in Melbourne, where she had been studying as an international student.  
12	It was not until January 2018 that the applicant was identified as the offender using a FACE image prepared by SC.  The applicant was interviewed about this incident on 13 July 2018 and made full admissions. 
May 2017 offending (Indictment H11371899.1)
13	The offending in relation to Indictment H11371899.1 occurred on 4 May 2017, when the applicant was 18.  The first offence that day was committed with two other young women (‘EC’ and ‘CT’).  The victim (‘NR’) was walking with two friends along the Yarra River near Flinders Street railway station.  They heard females shouting at them but could not make out what was being said.  As NR and his friends continued walking, they heard more shouting and noticed it was getting louder. 
14	The applicant, together with EC and CT, came up behind NR and his friends.  The applicant was swearing and aggressive, and started waving a knife at NR’s head.  NR stepped back to avoid the knife, and then managed to run away.  (Related summary offence — assault with a weapon.)  
15	The other offences occurred later that day.  The victim (‘AN’) had been communicating with EC via text, having met her on Tinder.  They had not met in person.  At about 6.30 pm, EC sent AN a text arranging to meet him at her residence.  AN drove there, arriving at about 8.00 pm.  
16	Later that evening, the applicant and CT were also present at EC’s residence. EC asked AN to drive her to St Kilda, but he refused.  After a whispered conversation between EC and the applicant, EC asked AN to drive them to the Sunshine railway station.  AN got into the driver’s seat, EC got in the front passenger seat, CT sat in the back seat behind the front passenger and the applicant sat in the back seat directly behind AN.
17	On arrival at the Sunshine railway station the applicant told AN that her aunt lived in Sunshine and began directing him away from the station.  At this point CT pretended to be ill and AN pulled over and switched off the engine.  The applicant stabbed AN to the right side of his neck from behind and then stabbed him again to his forehead.  EC and CT each pulled out knives and started to stab AN in the arm while he attempted to protect himself.
18	AN unlocked his seatbelt but heard the applicant say that he should not be allowed to leave the car.  He was able to get out of the car and run away, leaving his mobile phone.  He returned shortly after to try and get his car keys and, as he reached in, one of the girls from the back seat slashed his right arm.  He heard the applicant telling the others not to let him take the keys.  (Charge 1 — intentionally cause serious injury.)  AN’s mobile phone was later found at the applicant’s residential address.  (Charge 2 — theft.)
19	AN was found to have suffered the following injuries:
•	a wound in the sternum; 
•	a deep, ragged wound on his right elbow;  
•	several wounds on the left forearm and a deep wound to the base of his right-middle finger;  
•	multiple stab wounds, two to the left of his forehead, which were stitched, and a third under his hair; 
•	a long wound to the neck extending right from the front to the back;  and 
•	cutting into superficial facia and muscle and a possible piece of knife blade embedded in the skull. 
20	The attack left AN with visible scarring and physical incapacitation due to the injuries to his arm.  He was unable to continue doing the warehousing job that he had had before the attack and has had to undergo psychological treatment for stress and anxiety.  
21	The applicant was arrested on these charges on 17 May 2017 and remanded into custody.  By the time of sentencing on 14 June 2019, she had been on remand in adult custody for 758 days. 
22	During her time in custody, the applicant has undertaken numerous programs, attended Narcotics and Alcoholics Anonymous and worked sewing prison uniforms.  She has received therapy and a medication regime.  The judge described the applicant as having ‘progressed very well within the gaol environment’.
Consideration
23	As the respondent correctly points out, the proposed ground of appeal is properly to be understood as a ground alleging manifest excess.  It is not suggested that the judge failed to take delay into account, as the matter was debated at some length on the plea.  Rather, the contention is that it was not reasonably open to the judge to impose the sentence which she did if proper weight had been given to the effect of delay, that is, the loss of the opportunity to be dealt with in the Children’s Court in relation to the 2016 offending and the demonstrated rehabilitation on remand.
24	This was extremely serious offending.  The judge rightly described it as the ‘savage stabbings of other people’.  The impact on the victim was in each case profound, both physically and psychologically.
25	We note that the gross violence charge to which the applicant pleaded guilty involved the following elements, namely, that she:
(a)	planned in advance to engage in conduct and at the time of planning intended that the conduct would cause a serious injury;
(b)	in company with two or more other persons caused the serious injury;  and
(c)	planned in advance to have with her and to use an offensive weapon namely a knife and in fact used the said knife to cause the serious injury.
26	Of particular significance to the sentencing exercise was the fact that, in June 2015 when she was 16, the applicant had perpetrated another savage stabbing.  She had caused life-threatening injuries to a TAFE classmate.  She pleaded guilty to intentionally causing serious injury in circumstances of gross violence, the same offence as she committed against SC in December 2016. 
27	For that offending, the applicant was sentenced to 22 months’ detention in a youth justice centre.  In those circumstances, as the prosecutor correctly pointed out on the plea, it was overwhelmingly likely that the December 2016 offending would have been uplifted from the Children’s Court even had the prosecution initially been instituted there.
28	In our respectful view, the sentencing judge carried out this difficult sentencing task with great care and sensitivity.  The plea transcript records the judge’s decision to obtain an independent psychiatric assessment from Forensicare, in order to be sure that she had a full and up-to-date picture of the applicant’s borderline personality disorder and post-traumatic stress disorder.  
29	In the course of lengthy exchanges between the judge and the applicant, her Honour made clear that the gravity of the offending, and the serious prior conviction, left her with no alternative but to impose a lengthy prison sentence.  At the same time, her Honour was at pains to acknowledge the impact of the applicant’s traumatic childhood, to endorse the efforts she had been making during her time in custody and to encourage her to prepare for a constructive future.
30	As her Honour said in her reasons:
I have described your offending as savage and terrible, but I also recognise that your life from a very early age, from the time you were a very little girl, has been one involving terrible abuse.  That is by no means an excuse for what you have done, but it is an explanation and it is something that I must take into account in sentencing you.
31	The judge went on to say that, because of the applicant’s remorse, the damage she had suffered as a child, the prospect of deportation which she faced, and her youth, she would impose 
a sentence that is far less than would have been the case were you an older person.  Ultimately, however, the offending … was incredibly serious.  It involved a savage knife attack on two people.  This is the second time you have been sentenced in this way.  Community protection, general deterrence, specific deterrence, denunciation and condign punishment are all the dominant sentencing principles in the exercise before this court.
32	In our respectful view, the sentence imposed is unimpeachable.  This case illustrates the very great difficulties which confront judges daily in the performance of their sentencing function.  Her Honour showed exemplary care and sensitivity in addressing the complex issues which arose.
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