A B v the Queen
[2013] VSCA 309
•29 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0251
| AB (A PSEUDONYM) |
| Applicant |
| V |
| THE QUEEN |
| Respondent |
---
| JUDGES | WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 October 2013 |
| DATE OF JUDGMENT | 29 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 309 |
| JUDGMENT APPEALED FROM | DPP v [CD] & Anor (Unreported, County Court of Victoria, Judge M Bourke, 29 & 30 August 2012) |
---
CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury, affray and make threat to kill – Total effective sentence of 6 years 10 months’ imprisonment – Non-parole period of 4 years 10 months – Whether sentence imposed unduly disparate with sentence of co-offender – Disparity in sentences does not give rise to a justifiable sense of grievance – Leave to appeal granted – Appeal dismissed.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr M D Phillips | Victoria Legal Aid |
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I will invite Coghlan JA to deliver the first judgment.
COGHLAN JA:
The applicant seeks leave to appeal against the following sentence imposed by his Honour Judge Bourke on 30 August 2012 after two trials.
Charge Offence Maximum Sentence Cumulation 1 Intentionally cause serious injury [Crimes Act 1958 (Vic) s 16] 20 years [Crimes Act 1958 (Vic) s 16] 6 years 6 months
Base 3 Affray [Common Law] 5 years [Crimes Act 1958 (Vic) s 320] 15 months Nil 5 Make threats to kill [Crimes Act 1958 (Vic) s 20] 10 years [Crimes Act 1958 (Vic) s 20] 6 months[1]
4 months Total Effective Sentence: 6 years 10 months’ imprisonment Non-Parole Period: 4 years 10 months Pre-sentence Detention Declared: Nil Other orders:
- Disposal order
- Order for taking of forensic sample[1] Sentenced as a serious violent offender on this charge
The co-accused, CD, was sentenced on 11 October 2012 as follows:
Charge Offence Maximum Sentence Cumulation 1 Intentionally cause serious injury [Crimes Act 1958 (Vic) s 16] 20 years [Crimes Act 1958 (Vic) s16] 3 years 6 months
Base
Charge Offence Maximum Sentence Cumulation 3 Affray [Common Law] 5 years [Crimes Act 1958 (Vic) s 320] 8 months Nil Total Effective Sentence: 3 years 6 months’ imprisonment Non-Parole Period: 14 months Pre-sentence Detention Declared: 105 days Other orders:
- Forensic sample retention order
The circumstances of the offending can be found in the Registrar’s Neutral Summary:
The offending on charges 1 and 3 occurred in the early hours of Sunday 20 September 2008. The previous night, the victim N and his brother in law, S, went to a social function attended by members of the Tamil community. AB and CD are also members of that community. There was some trouble at the function.[2] The victims ultimately left by car, with N driving and S as passenger. AB, CD and others followed, in two (or perhaps three) cars. At one stage, N drove to the police station and waited outside. He then continued the journey home. In a suburban street, one of the following cars blocked the victims’ passage. AB and another man got out of a second car, armed with samurai swords. The other man swung violently and cut N’s upper thigh, causing injuries including a laceration which required 70 stiches. AB swung at N’s head. N raised an arm, and the sword struck his hand, severing part of a finger, fracturing small bones and causing lacerations and nerve damage to the hand (charge 1 – intentionally cause serious injury).
Other people from AB’s group, including CD, had also got out of the cars. The numbers ranged from about five to ten or more depending on witnesses’ accounts, and the judge found that there were at least five. Some were armed, perhaps with swords, but certainly with pieces of wood akin to garden stakes. The judge stated that the evidence did not establish beyond reasonable doubt that CD was so armed, but that CD was part of the concerted attack clearly aimed at seriously injuring N.
The group chased N (who was assisted by S) along the streets. The victims went to a house and sought refuge. A number of people, including residents and S, called the police. Some of the group set about N’s car with their weapons. The judge noted that the evidence did not establish AB or CD’s personal involvement in that damage, nor that such damage was part of the criminal agreement between them and others, hence their acquittal on the criminal damage charge.
The offence of affray was made up of the group attack upon N and S immediately leading up to the two sword strikes, and continuing thereafter to include the violent and menacing pursuit of both men. A number of residents of the area described the noise, disruption and violence of the situation (charge 3 – affray).
AB alone committed the further offence of threatening to kill N on 24 November 2008 (charge 5). By that date, AB had been interviewed by police, but not charged, in relation to the sword attack. AB knew that N had identified him as was one of the perpetrators. On the evening of 24 November 2008, N was driving with S as his passenger. AB drove his car in a way to impede them and, at one point, the two cars were travelling next to each other. AB spoke to N through the front passenger window of his (AB’s) car, threatening to kill N.
AB was interviewed by police on 27 November 2008 and denied the incident.
As to the sword attack, AB denied his involvement when interviewed on 29 September 2008, and maintained throughout the trial and plea that he had nothing to do with it and was wrongly identified.
[2]The nature of the trouble is unclear, and nothing further need be said of the details.
The applicant seeks leave to appeal against sentence on the following ground:
The sentences imposed upon [AB] in respect of charges 1 and 3 are excessively disparate with those imposed upon [CD].
CD received 3 years less on charge 1 and 7 months less on charge 3 than AB and he received 34 months less on his non-parole period.
The applicant argues that the disparity between the sentences of CD and AB cannot be justified on account of CD’s co-operation with the authorities and that the learned sentencing judge gave insufficient weight to the prior convictions of CD.
The learned sentencing judge did decide to give CD a significantly lesser sentence than that of AB. He did so because of his co-operation with the authorities and because of his mental state which had deteriorated whilst he was in prison and which attracted both principles 5 & 6 from R v Verdins.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[3]
[3](2007) 16 VR 269 [32].
The general principles applicable to parity have recently been summarised by Redlich and Weinberg JA in R v Kelly where they said:
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal. This Court will interfere in such cases where it considers that the disparity between the co‑offenders is ‘marked’ or, as Dawson J said in Lowe v R, where the differences between the sentences are ‘manifestly excessive'.
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done. To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the co‑offender's penalty, although it is well established that ‘there is no principle of law that sentences must strictly compare’.
Where the principle of parity is enlivened, this Court will not necessarily reduce the higher sentence so that it equates in all respects with the sentence imposed on the co‑offender. While the sentence imposed on the co‑offender must be taken into account as part of the discretionary exercise, justice will not necessarily require that the court match the sentence imposed upon the co‑offender.[4]
[4][2011] VSCA 10 [5]-[7] (citations omitted).
In this case there are two features present in the case of CD that are not present in the case of AB. There are reasons for the disparity in the sentences. Since the question of what reduction in sentence is to be given for co-operation with the authorities is a matter of discretion, the reassessment of that discretion as it may relate to AB will be difficult. It will only be in the clearest of cases that it can be said that the sentencing discretion has miscarried to such an extent that it gives rise to a ‘justifiable sense of grievance’ on the part of the co-accused.
Since there are powerful reasons for the full details of what CD has disclosed not to be published the frustration of the applicant is understandable.
In this case the learned sentencing judge received evidence and after doing so he considered that the matters urged on him were such that he found the assistance to be ‘important and valuable’.[5] It also appeared to be the case that CD was at risk because of those matters.
[5]DPP v [CD] & Anor (Unreported, County Court of Victoria, Judge Bourke, 29 & 30 August 2012) [48] (‘Sentencing reasons’).
I have had the opportunity of reading the relevant material except for a confidential affidavit which had been provided to his Honour. The applicant’s legal advisers have had access to the same material and submitted that it is insufficient to warrant the disparity between the sentenced imposed by his Honour. The authorities have made it clear that a wide range of discounts may be available to those who cooperate with the authorities, perhaps even exceeding two-thirds per cent.[6]
[6]R v Johnston (2008) 186 A Crim R 345.
I am satisfied that the matters referred to were important and did merit a significant reduction in sentence. The material provided to the Court is subject to a suppression order and will be placed in a sealed envelope on the court file marked ‘Not to be opened except on the order of a judge of this Court’.
In the joint reasons for sentence in relation to both AB and CD his Honour said, when referring to the applicant, that he would not give weight to any Verdins considerations as he did not think they had ‘significant application in [AB]’s case’.[7]
[7]Ibid [21].
His Honour did accept that imprisonment would be more difficult for the applicant than it might be for others.
His Honour said of CD:
Similarly to your co-accused, I do not see significant application of the Verdins principles impacting upon sentencing considerations such as your moral culpability in committing these crimes, denunciation and deterrence. I do find that, in accordance with Mr Coffey's opinions, because of your personal history and psychological vulnerability imprisonment is harder and will likely continue to be so. There is a risk of deterioration of your psychological state.
Also similar to [AB], your harsh traumatic background and circumstances remain relevant in that perhaps more general way I have earlier described. You are to be sentenced considering the full personal circumstances and situation of your life.[8]
[8]Ibid [28]-[29].
Towards the end of his Honour’s sentencing of CD it became apparent that he was concerned about something and the sentence was adjourned so that further material could be received. An additional report from forensic psychologist Guy Coffey was prepared and tendered in support of CD’s plea. When CD came to be sentenced on 11 October, his Honour said:
In the previous report I commented on features of the prison environment which may cause [CD] particular hardship and I anticipated that his post-traumatic anxiety symptoms may intensify during the course of his incarceration. His condition has deteriorated more quickly than I predicted. I am unable to say whether in the immediate term his condition might further deteriorate but I remain of the opinion that it is probable further deterioration will occur over the course of an imprisonment lasting many months or a year or more.
[CD] has been moved to a secure section of the prison designed for people experiencing psychological difficulties. He experienced some relief that it is a place where he is less able to harm himself. He said while there he has seen a psychologist on a few occasions for about 15 minutes. If this is the extent of his contact with prison mental health services, I would recommend, in order to reduce the likelihood of further rapid deterioration, that he be provided psychological and psychiatric involvement considerably more comprehensive than he has thus far received."
I agree with the submission of Ms Condon that the Verdins principles apply in respect of the particular hardships you suffer and will continue to suffer in prison and that there is a real risk that your mental health and situation will be further adversely affected by continuing imprisonment. In your case I see these as significant factors.
Consideration of the mitigating and personal factors relevant to your sentence leads me to the view that a lesser sentence is justified and in particular a minimum term which is shorter than usual.[9]
[9]DPP v [CD} (Unreported, County Court of Victoria, Judge Bourke, 11 October 2012) [11]-[14].
It followed that CD did receive a lesser sentence than AB on account of his mental illness, and the effect it would have on him in serving his sentence.
The other matter argued in the written case on the application was that CD should have received a greater sentence than AB because of his prior convictions. CD did have two prior convictions. In March 2007 he had been sentenced to a wholly suspended 2 month term of imprisonment for driving whilst disqualified and fined for exceeding the prescribed concentration of alcohol within three hours of driving. In August 2006 he had been released without conviction on a 12 month adjourned undertaking for assault with a weapon.
The applicant has no prior convictions but had a number of court appearances after the offending but before sentence. He was serving a six month sentence at the time he came to be sentenced for reckless conduct endangering serious injury and driving at a speed dangerous which arose after the restoration of a suspended sentence. He also had convictions for affray and unlawful assault for which he was released on a community based order. There were other convictions.
It had been put on the plea of CD that the assault with a weapon matter had arisen as a result of a dispute with his wife. It seems that he had assaulted her with a spoon. The disposition he received would indicate that the matter was not a particularly serious one. The applicant’s convictions (which did not constitute prior convictions) were relevant, in particular, to his prospects of rehabilitation.
I do not believe that there was any basis to distinguish between the applicant and CD on the basis of prior convictions.
A sentencing range had been provided in relation to both the applicant and CD at their plea hearing. For the applicant the range was said to have been 5 ½ years to 7 ½ years head sentence, with 3 ½ years to 5 ½ years as a non-parole period. The range for CD was said to be 3 to 5 years head sentence with 1 to 3 years as a non-parole period.
It was clear at the time of the plea that the prosecution were conceding a much lower sentence for CD than for the applicant.
It is established that there were reasons to distinguish between the sentences imposed on the applicant and CD.
The final question is whether it can be said that the actual sentences imposed give rise to a justifiable sense of grievance.
When the material differentiating the two accused is looked at as a whole I am of the view that it has not been shown that the disparity in this case has given rise to any sentencing error.
I would grant leave to appeal, given that the points raised were fairly arguable. However, I would dismiss the appeal.
WEINBERG JA:
I agree. The order of the Court will be that leave to appeal be granted, but that the appeal itself be dismissed.
- - - -
0