and Redzhuan Bin Mahat v The Queen
[2015] VSCA 111
•19 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0270 | |
| REDZHUAN BIN MAHAT | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WHELAN, SANTAMARIA and BEACH JJA | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 19 May 2015 | |
DATE OF JUDGMENT: | 19 May 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 111 | |
JUDGMENT APPEALED FROM: | DPP v Mahat (Unreported, County Court of Victoria, Judge Pilgrim, 13 November 2014 (date of sentence)) | |
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CRIMINAL LAW – Sentence - Appeal against sentence – Multiple offences – Armed robbery – Aggravated burglary – Burglary – Intentionally causing serious injury – Theft – Pleas of guilty – Appellant suffering from mental impairment – No prior convictions – Very serious offending – Principles referred to in R v Verdins (2007) 16 VR 269 engaged – Totality – Whether individual sentences, orders for cumulation or total effective sentence of nine years with non-parole period of seven years manifestly excessive – Sentences and orders not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Pyne | Victoria Legal Aid |
| For the Respondent | Mr B F Kissane QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA
SANTAMARIA JA
BEACH JA:
Introduction
On 13 November 2014, the appellant pleaded guilty to four charges of aggravated burglary, one charge of armed robbery, one charge of intentionally causing serious injury, one charge of burglary and three charges of theft. Following a plea hearing, the appellant was sentenced on the same day as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year 2 Armed robbery [Crimes Act 1958, s 75A(1)] 25 years’ imprisonment 3 years 1 year 3 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year 4 Intentionally causing serious injury [Crimes Act 1958, s 16] 20 years’ imprisonment 4 years Base 5 Burglary [Crimes Act 1958, s 76(1)] 10 years’ imprisonment 15 months - 6 Theft [Crimes Act 1958, s 74(1)] 10 years’ imprisonment 6 months - 7 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year 8 Theft [Crimes Act 1958, s 74(1)] 10 years’ imprisonment 6 months - 9 Aggravated burglary [Crimes Act 1958, s 77(1)] 25 years’ imprisonment 3 years 1 year 10 Theft [Crimes Act 1958, s 74(1)] 10 years’ imprisonment 6 months - Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 7 years
On 27 February 2015, Priest JA granted the appellant leave to appeal against his sentence on the following ground:
The total effective sentence and the non-parole period are manifestly excessive, having regard to:
(a)the learned Judge’s finding that the appellant was mentally impaired to the extent that he was ‘a near miss on the defence of mental impairment’;
(b) the appellant’s lack of prior convictions;
(c) the appellant’s plea of guilty;
(d) the appellant’s relative youth and personal circumstances;
(e) the principle of totality.
In granting the appellant leave to appeal, Priest JA said that in his view it was reasonably arguable that the individual sentences on charges 7 and 9 were excessive. Additionally, his Honour said that it is a ‘reasonably arguable conclusion that the non-parole period is manifestly excessive, particularly when … manifold and manifest mitigating features are weighed properly in the balance’. However, with respect to charges 1, 2, 3 and 4, Priest JA said:
I am not immediately attracted to the view — even having regard to the significant mitigating features of the case — that the individual sentences or orders for cumulation on these charges … are other than appropriate.
Circumstances of the offending
The appellant’s offending occurred on five separate dates between late July and mid-September 2013. In his reasons for giving leave, Priest JA summarised the appellant’s offending in the following terms:
The app[ellant] is 26 years of age, having been born in Selangor, Malaysia on 8 July 1988.
He arrived in Melbourne on a Malaysian passport on 3 October 2012, holding a twelve month travel visa which expired on 3 October 2013. It seems that after his arrival, he worked as a transient fruit picker along the Murray Valley Highway in northern Victoria. Pay envelopes seized after his arrest suggested that he had worked in and around Robinvale and Cobram. The offending which founded the ten charges on the indictment all occurred in Cobram.
Charge 1 (aggravated burglary) and charge 2 (armed robbery) related to events which occurred on Saturday, 27 July 2013. Between 7:45pm and 8:00pm, the app[ellant] unlawfully entered a residential property. Two women were at home watching television in an upstairs area and getting ready for bed. One of the women, Ms Guo, went downstairs for a shower, and noticed the lights were out. When she entered a bedroom and turned on the light, she noticed a pillow cover was unfolded. The app[ellant] then jumped out from behind the door. He was holding a pointed knife, about eight centimetres in length, in his right hand. The app[ellant] brandished the knife at Ms Guo and told her to ‘shut up’. Ms Guo started to scream to get her friend’s attention. When her friend came to the door of the bedroom with her mobile telephone to her ear, the app[ellant] rushed at her. The app[ellant] kept saying ‘give me money’. He then grabbed the telephone and ran off.
Charge 3 (aggravated burglary) and charge 4 (intentionally causing serious injury) arose out of incidents on Friday, 23 August 2013. The app[ellant] gained entry to a house through the open door of an adjoining garage (which could only be accessed by entering a fenced back yard). David Hyde, his wife Julie and two friends, Bill and Debbie Dopper, were inside the home watching television a short distance from where the app[ellant] gained entry. The app[ellant] went into the master bedroom and ransacked drawers and personal belongings. Cash, jewellery and credit cards were stolen. The occupants were alerted to the presence of an intruder by a family dog. Mr Hyde went to the bathroom and was confronted by the app[ellant], who produced a knife and lunged at him. He punched the app[ellant] a number of times before the app[ellant] struck him multiple times to the face and neck with the knife. As a result of his injuries, Mr Hyde was unable to pursue the app[ellant] who ran from the house. Mr Hyde collapsed. He was taken to hospital, where he was treated for a combination of serious injuries. He received three stab wounds – to the left breast, to the left hand and to the left hand jaw area. The knife fractured his lower jaw from the centre of the chin to the lower part of the left ear, severing the nerve. The knife also sliced his tongue and pierced the back of his throat, damaging his airways. Three titanium plates were inserted in his jaw, and he had plastic surgery on his face and microsurgery to fix his tongue and the nerve damage. He was, for a period, in intensive care.
Charge 5 (burglary) and charge 6 (theft) relate to offending on Tuesday, 3 September 2013. Between 7:15pm and 10:15pm, the app[ellant] entered a home through an open door while the occupant was away. From the main bedroom, the app[ellant] stole two necklaces, a watch, assorted jewellery and $300 in cash.
Charge 7 (aggravated burglary) and charge 8 (theft) occurred between 9:30pm on Wednesday, 4 September 2013, and 6:30am on Thursday, 5 September 2013. The app[ellant] entered the rear yard of a unit and cut the fly screen on the bedroom window of the female occupant. He climbed through the window and walked past the bed where she was sleeping. The app[ellant] stole the victim’s handbag, which contained her purse and credit cards, her Australian passport and sunglasses. He also stole a laptop computer and assorted jewellery (including a silver women’s watch, gold earrings and a white gold ring set with diamonds).
Charge 9 (aggravated burglary) and charge 10 (theft) relate to events that occurred on Tuesday, 10 September 2013. The app[ellant] cut the fly screen off the kitchen window of a unit to gain entry. Once inside, the app[ellant] proceeded to steal a wireless internet device, a Commonwealth Bank credit card, the victim’s drivers licence and other forms of identification from the victim’s purse. The female victim was asleep in the master bedroom. She discovered the offending when she woke.
…[O]n 1:20pm on Friday, 13 September 2013, police attended the app[ellant]’s premises in Cobram and arrested him. A deal of stolen property was located at his premises. When taken to the Cobram Police Station, the app[ellant], despite having readily communicated with the police up to that point, claimed not to understand English when formally questioned. An interpreter was obtained, and the app[ellant] obtained legal advice. During a recorded interview, the app[ellant] made certain admissions to his possession of various articles, but denied allegations put to him.
The sentencing judge’s reasons
The sentencing judge commenced his reasons for sentence by noting that the appellant had pleaded guilty, and that therefore a lesser sentence would be imposed than he otherwise would have imposed. The judge then described in some detail the appellant’s offending and the circumstances of his apprehension by police.[1] In the course of this description, the judge set out, in summary form, the very serious consequences of the injuries the appellant inflicted upon Mr Hyde with the knife that the appellant used during the offending at Mr Hyde’s home.
[1]DPP v Mahat (Unreported, County Court of Victoria, Judge Pilgrim, 13 November 2014) (‘Reasons’) [3]–[17].
The judge then set out (again in some detail) the evidence of Dr Walton, a consultant psychiatrist who had examined the appellant on 4 October 2013 and 5 September 2014. Dr Walton’s evidence was that the appellant suffered from a major psychotic illness, paranoid schizophrenia, and that the appellant laboured under that condition at the time of his offending. According to Dr Walton, the extent of the appellant’s psychiatric condition was such that he was at or approaching a ‘near miss mental impairment’. The judge noted these matters before noting Dr Walton’s opinion as follows:
Mr Mahat is suffering from what is likely to be a permanent psychotic illness although it will wax and wane in severity over time. Any person suffering from schizophrenia endures imprisonment as more onerous than others but Mr Mahat has additional factors due to his cultural isolation, somewhat limited English language skills and the lack of any local family support.[2]
[2]Reasons, [25].
Having referred to the evidence of Dr Walton, the judge then accepted that each of the six principles referred to in R v Verdins[3] were engaged.[4] Specifically, the judge accepted that the appellant’s paranoid schizophrenia reduced the appellant’s moral culpability, and that, in the circumstances, general deterrence and specific deterrence had to be moderated. Having already noted that imprisonment would be more burdensome for the appellant because of his psychiatric illness, the judge also accepted that treatment for that condition and rehabilitation would occur more optimally if the appellant was in the community.[5]
[3](2007) 16 VR 269 (‘Verdins’).
[4]Reasons, [27].
[5]Ibid [31].
The judge then noted the appellant’s counsel’s concession (correctly made) that the appellant’s offending was ‘indeed serious’.[6] The judge expressed the view that the appellant’s impoverished state at the time of his offending did not adequately explain or excuse the appellant’s conduct.
[6]Ibid [32].
While noting that the appellant had no prior convictions and that the appellant had pleaded guilty at the earliest opportunity, the judge said that the appellant’s offending was ‘certainly amongst the very worst’ he had ever encountered in his experience on the bench — particularly the offences that constituted charges 1, 2, 3 and 4.[7]
[7]Ibid [43]–[44] and [46].
Finally, the judge again made reference to Verdins, saying that he had taken this and the other matters put in mitigation into account in imposing the sentence he imposed.
The appellant’s submissions
The appellant submitted that the head sentence of nine years was beyond the range of available sentences for a first offender, who pleaded guilty at the earliest opportunity, and who was mentally impaired to the extent that the appellant was at the time he committed the offences (and, to a lesser extent, also at the time he was sentenced). Specifically, the appellant submitted that his moral culpability should have been ‘very significantly reduced’; ‘general deterrence should have been very greatly moderated’; and ‘the sentence should have been moderated because imprisonment, especially a long period of imprisonment, would weigh heavily on him’.
Additionally, the appellant submitted that the judge failed to adequately apply the principle of totality. In support of this submission, the appellant emphasised that the offending took place over a period of approximately six weeks, when the appellant was in an ‘impoverished state’ and ‘acutely psychotic’. Further, the appellant contended that the degree of cumulation (five years) ordered on the base sentence was ‘not commensurate with the whole of the offending conduct’. Complaint was also made by the appellant that the sentences on charges 1 and 2 (which related to the one premises and to a single course of conduct) had resulted in two separate orders for cumulation. These matters were said to result in a sentence which was ‘not a just and appropriate measure of the appellant’s total criminality’.
As to the non-parole period, the appellant submitted that this was too high, both as to the period of time ordered, and in the proportion that period bore to the head sentence (77.78 per cent). The appellant submitted that having regard to the absence of prior convictions, the fact that he had never been imprisoned before, the fact that there was no reason to think that a term of actual imprisonment would not have its full deterrent effect, the appellant’s mental condition, the appellant’s age, and the fact that the appellant had pleaded guilty at the earliest opportunity, the non-parole period should have been set at something in the range of 60–75 per cent of the head sentence as frequently occurs. Further, the appellant submitted that the judge’s failure to explain why he imposed the non-parole period, of itself, revealed error.
The respondent’s submissions
The respondent submitted that each of the sentences and orders for cumulation, the head sentence and the non-parole period were all within range. The respondent contended that the total effective sentence imposed, and the non-parole period, were within range because, despite the presence of what the respondent accepted were ‘some considerable factors in mitigation’, the appellant’s offending was ‘very serious offending’.
In support of this submission, and in order to put the relevant mitigating factors in context, the respondent pointed to the evidence of Dr Walton as follows:
While [the appellant] does seem to have been assailed by hallucinosis and bizarre ideas around the time of his offending, as best I can judge, on a fairly fine balance of probabilities, [the appellant] does seem to have retained a substantial capacity for distinguishing right from wrong and therefore he does not have a defence of mental impairment available to him. That said, it certainly is my opinion that his major mental disorder has played a central role in the offending, principally by way of poor exercising of judgment in relation to dealing with his state of financial necessity.
As to the issue of totality, the respondent submitted that the orders for cumulation demonstrate that the judge was mindful of the need to reflect the additional criminality of the various offences, while not offending principles of totality.
As to the non-parole period, the respondent submitted that merely because the proportion was slightly above what has sometimes been problematically described as ‘the usual range’, does not mean that there was any error on the part of the judge. The respondent submitted that a non-parole period of seven years was one that was open to be imposed by the judge so as to meet the gravity of the offending in this case, notwithstanding the mitigatory factors to which the judge referred.
Analysis
There can be no doubt that this was very serious offending. When the sentence for each individual offence is examined, one can see that the sentences imposed are light compared to the prescribed maximum sentences. There is, in our view, little complaint that the appellant can make about the individual sentences — even if it might be said that the sentences on charges 7 and 9 are perhaps at the higher end of the range when one has regard to the appellant’s relative youth, his lack of prior convictions, his plea of guilty at the earliest opportunity, and his psychiatric condition.
While the appellant makes complaint about one year being cumulated in respect of each of charges 1 and 2 (aggravated burglary and armed robbery), which offences occurred as part of the same transaction in the same premises, there is nothing in this complaint. On one view, it might be said that to only receive two years’ cumulation for the episode of serious criminal conduct which gave rise to these charges was, if anything, lenient.
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[8]
[8]R v Abbott (2007) 170 A Crim R 306.
The task of an appellate court in a case such as this was described by Lowe and Gavan Duffy JJ in R v Taylor and O’Meally:[9]
It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously — not merely arguably — too severe or too lenient, it will not interfere.
[9][1958] VR 285, 289.
We are not persuaded that any of the sentences imposed, the orders for cumulation, the total effective sentence or the non-parole period are wholly outside the permissible range that was open to the sentencing judge. To the contrary, in our view, the sentences and orders imposed by the judge reflect the substantial mitigatory factors present in this case, namely the appellant’s psychiatric condition, his relative youth, his lack of prior convictions, and his plea of guilty at the earliest opportunity. Without these factors at play, one might have expected that a significantly greater term of imprisonment and non-parole period would have been ordered.
The very serious criminal conduct engaged in by the appellant occurred on five separate occasions. Each occasion was a serious example of serious offending. The offending has, in differing degrees, had lasting effects so far as the appellant’s victims are concerned. In relation to charge 4 (intentionally causing serious injury in relation to Mr Hyde), it is to be remembered that Mr Hyde had to be taken to hospital to be treated for a combination of serious injuries. Mr Hyde received three stab wounds — to the left breast, to the left hand and to the left-hand jaw area. The knife used by the appellant fractured Mr Hyde’s lower jaw from the centre of the chin to the lower part of the left ear and severed the nerve. The knife also sliced Mr Hyde’s tongue and pierced the back of his throat, damaging his airways. Three titanium plates had to be inserted into Mr Hyde’s jaw, and he required plastic surgery on his face, and microsurgery to fix his tongue and nerve damage.
In our view, not only do the sentences imposed and the orders made by the judge properly reflect the principles of totality, they also show, as we have already said, that the judge was fully cognisant, and took into account, all of the relevant mitigating factors and circumstances. While the non-parole period might be slightly higher than we would have fixed ourselves, that is not the test. Put shortly, we cannot say that the non-parole period (either as a term or as a proportion of the head sentence) was outside the permissible range of sentences open to the judge.
Conclusion
The appeal must be dismissed.
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