Dang v Li
[2021] ACTSC 179
•5 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dang v Li |
Citation: | [2021] ACTSC 179 |
Hearing Date: | 3 December 2020 |
| Submissions last received: Decision Date: | 17 December 2020 5 August 2021 |
Before: | McWilliam AsJ |
Decision: | See [113] |
Catchwords: | CRIMINAL LAW – APPEAL – Judgment and Punishment – Sentence – appeal from Magistrates Court against sentence – whether Magistrates Court erred in taking into account conduct which could have been the subject of a separate charge – whether another sentence warranted in law |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5051 Magistrates Court Act 1930 (ACT) ss 207, 208, 214 |
Cases cites | AA v McDevitt [2017] ACTSC 342 ZL v Corey [2020] ACTSC 143 |
Parties: | Minh Dang (Appellant) Ying-dah Li (Respondent) |
Representation: | Counsel Mr J Tyler-Stott with Mr S Tierney (Appellant) Ms K McCann (Respondent) Solicitors Ken Cush & Associates (Appellant) ACT Office of the Director of Public Prosecutions (Respondent) |
File Number: | CA 3 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 20 December 2018 Case Title: The Police v Minh Dang Court File Number: CC 7057 of 2017 |
McWilliam AsJ:
This is an appeal from a sentence imposed by the Chief Magistrate in the Magistrates Court (the sentencing court) on 20 December 2018 in relation to the offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act).
The offence occurred on 25 March 2017, when Mr Minh Dang (the appellant) was drinking at a bar and an incident occurred sometime after midnight. The appellant “glassed” another man, unknown to him, causing a laceration to the side of the victim’s face. The victim was taken to hospital.
The appellant ultimately pleaded guilty and was convicted. He was sentenced to 15 months’ imprisonment, 3 months of which was to be served in full-time custody and the remainder was to be suspended upon the appellant undertaking to comply with the requirements of a good behaviour order for a period of two years, with the sentence to expire on 19 March 2020. The Chief Magistrate further made a separate reparation order that the appellant pay to the victim the sum of $918.00 for medical expenses, to be paid within 2 years.
Nature of the appeal
The appellant appealed the sentence pursuant to ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) and r 5051 of the Court Procedures Rules 2006 (ACT).
The appellant’s further amended notice of appeal, filed 3 December 2020, outlines four grounds of appeal:
(a) The learned sentencing magistrate erred in taking into account permanent scarring when sentencing the appellant (Ground 1);
(b) The learned sentencing magistrate erred in failing to consider, properly or at all, the pre-sentence report (Ground 2);
(c) The sentence imposed was “manifestly excessive” in the circumstances of the appellant (Ground 3); and
(d) The appellant should be re-sentenced on the grounds of hardship as disclosed in the further evidence to be admitted into evidence on this appeal (Ground 4).
The further evidence sought to be put before the Court as part of Ground 4 is also tendered as further evidence in the event that any of the other grounds are successful. The evidence is relevant to the question of events that occurred while he was in prison, and their consequences for the appellant in serving the sentence that is presently the subject of challenge. He seeks to persuade the Court that a different sentence should now be passed.
The orders sought by the appellant are as follows:
(a) The appeal be allowed; and
(b) The sentence imposed be set aside, reversed or varied, or an order made that the Court considers appropriate in all the circumstances.
The general applicable principles on appeal
It need hardly be said that a sentence imposed in the sentencing court will not be set aside simply because the appellate court might have imposed a different sentence following argument on appeal: Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 (Cooper) at [8]-[12] per Refshauge J. Error in the exercise of the discretion on sentence must first be established.
An appellate court must strongly resist “tinkering” with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [62].
The nature of the error may be specific, such as the types of error described in House v The King (1936) 55 CLR 499 at 505. Absent specific error, the court may intervene only if it concludes that the sentence “falls outside the permissible range of sentences for the offender and the offence”: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35]. In such circumstances, the error might be inferred from the sentence being manifestly excessive or inadequate, unreasonable, or plainly unjust or wrong: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [26] – [28] and Dinsdale at [6] per Gleeson CJ and Hayne J.
If error is established, the appellate court exercises the sentencing discretion afresh and independently, even if it reaches the same result as that of the sentencing court: Gillard v The Queen [2016] ACTCA 50 (Gillard) at [43], referring to Kentwell at [35] and [42], and AB v R [1999] HCA 46; 198 CLR 111 at 160. If the appellate court considers that a different sentence is appropriate in all the circumstances, the appeal may be upheld and a different sentence imposed: Keen v Tither [2010] ACTSC 130 at [44] per Penfold J, cited in Cooper at [10].
Ground 1: Did the Chief Magistrate err in taking into account permanent scarring when sentencing the appellant?
Nature of the error alleged
The appellant’s complaint arises out of the following reasons given by the Chief Magistrate in the reasons for sentence delivered in the sentencing court (emphasis added):
I am to consider the impact on the victim. [The] victim impact statement was very sparse. He didn’t say a great deal about the impact upon him, but he did say significantly that he is now anxious in social situations. Clearly, the type of fear that many people feel in wanting to socialise in a public place, is something which will now sit more heavily with him. Of course, there was the financial impact; he’s had to pay for the ambulance transport that he received that night. There is also the fact that he will be left with a significant and permanent scar.
The legal error asserted is based on what is routinely referred to as the De Simoni principle, so named from the case of the same name from which the principle derives; that being The Queen v De Simoni (1981) 147 CLR 383 (De Simoni). In that case, Gibbs CJ stated at 389:
[A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
In Nguyen v The Queen [2016] HCA 17; 256 CLR 656 (Nguyen), Bell and Keane JJ affirmed the De Simoni principle at [29], describing it as “an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted”.
In considering a complaint similar to the present, the Court of Appeal in Tracey v the Queen [2020] ACTCA 51 (Tracey) stated at [9] (emphasis added):
These grounds allege a breach of the principle in R v De Simoni (1981) 147 CLR 383 at 389 (De Simoni), which requires that an offender be sentenced only for the offence(s) charged, and not for conduct that could have been separately charged: see also Pearce v The Queen [1998] HCA 57;194 CLR 610 at [31] (Pearce); Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]. Although there has been some suggestion that the principle only applies to more serious crimes, the principle is not so confined: R v Olbrich [1999] HCA 54; 199 CLR 270 at [18].
Arguments of the Parties
The appellant contended that, in making the statement emphasised above at [12], the learned Chief Magistrate erred in considering conduct contrary to the De Simoni principle. The fact of a significant and permanent scar was itself something that amounted to grievous bodily harm under the Crimes Act. The non-exhaustive definition of “grievous bodily harm” in the Dictionary of the Crimes Act “includes …any permanent or serious disfiguring of the person”. The appellant submitted that a significant and permanent scar to the victim falls squarely within such definition.
Causing grievous bodily harm to another person by unlawful act or omission is a separate offence contrary to s 25 of the Crimes Act. That offence is also punishable by imprisonment for 5 years. Accordingly, the appellant submitted that the conduct taken into account in sentencing aggravated the charge beyond what can be considered as “actual bodily harm”.
The respondent submitted that the appellant’s complaint was misconceived. It was submitted that a permanent consequence of an injury, in and of itself, does not render the injury to be grievous bodily harm. The respondent relied upon AA v McDevitt [2017] ACTSC 342 (McDevitt), where Murrell CJ stated at [47]:
In the ACT, it has been accepted that “grievous bodily harm” means “really serious harm”, although the harm need not be permanent or life threatening: R v Shevlin [2013] ACTSC 88; R v Byrne 2013] ACTSC 246 [sic].
The Chief Justice went on at [48]-[49] to cite Swan v R [2016] NSWCCA 79 (Swan) at [71] with apparent approval. In Swan, Garling J (R A Hulme J agreeing) had earlier stated at [65]:
It is clear from the authorities that in ascertaining what constitutes really serious bodily injury, questions of fact and degree are involved. In R v Overall (1993) 71 A Crim R 170, Mahoney JA (with whom Allen J agreed) considered the difference between actual bodily harm and grievous bodily harm. At 174, his Honour said:
“The difference between actual bodily harm and grievous bodily harm is … one of degree. Actual bodily harm if ‘really serious’ (cf DPP v Smith at 335; 291) may constitute grievous bodily harm. Each is ‘harm’ but the one is more serious than the other.”
Garling J then went on to state at [71]:
To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase “grievous bodily harm” (emphasis in original):
(a) It is to be interpreted according to its natural and ordinary meaning;
(b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;
(c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;
(d) not every injury is capable of amounting to grievous bodily harm;
(e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.
Relying on the authorities above, in the present case, the respondent contended that the distinction between actual bodily harm and grievous bodily harm is one involving fact and degree, not permanence.
As I understood the respondent’s submissions, they were to the effect that regard should be had to the context. The submissions first referred to the circumstances of the offending, where relevantly the Chief Magistrate found as follows:
Turning firstly to the factual circumstances of this offending.
…
Your response, in any event, to him was to approach him with a glass in your hand to smash that glass down onto his head, it hitting him behind his left ear. That resulted in a cut or a laceration which opens to about a centimetre wide and was about 11 centimetres long. He bled heavily as a result of that. You continued to try to approach him but thankfully you were held back by other people and the assault was brought to an end at that point in time.
…
This is a serious incident. It is an incident of, as I say, what appears to be unprovoked violence in the context of intoxication, in a public house by effectively a person who had done nothing to warrant that approach.
Further context on which the respondent relied to submit that the De Simoni principle was not breached included the following matters:
(a) The sentencing court noted the correct offence and the correct maximum penalty for which the appellant was being sentenced.
(b) At no stage did the Chief Magistrate state that the offence was aggravated by the fact of the victim having scarring.
(c) The reference to the scar was contained in the victim impact statement, which was before the court without objection from the appellant.
As to the last of those matters mentioned, the victim impact statement was brief. It included the following:
I now find it difficult to relax in pubs or bars. Interacting with anyone I don’t know makes me anxious.
To attend the court hearing I had to take time off from work and fly to Canberra.
…
Physical [scarring] on the neck. Ambulance on the night of the incident cost of $918.
The respondent emphasised the context of the reasons because a breach of the De Simoni principle only occurs where a person “is in fact” sentenced for conduct constituting an uncharged offence or aggravating circumstance: Huang v R [2018] NSWCCA 57; 96 NSWLR 743 (Huang) at [54] per Beasley P (Bathurst CJ, Hoeben CJ at CL and Bellew J agreeing); at [98] per McCallum J.
The respondent’s concluding submission in respect of this ground was as follows:
In the instant matter, the appellant was sentenced on the basis of an injury which amounted to actual bodily harm. The injury which was inflicted clearly met the definition of actual bodily harm and, on the broad spectrum of injuries, fell towards the upper end, but fell short of meeting the definition of “really serious injury”. That the victim was left with a scar as a result did not transform the injury into grievous bodily harm. The appellant was not in fact sentenced on a basis other than that for which he entered a plea of guilty. The principle enunciated in De Simoni was neither engaged nor breached in the present matter. This complaint should be rejected.
Consideration
A court sentencing a person for an offence is entitled to take into account the circumstances in which it is committed. However, as stated by Lush J (Fullagar J agreeing) in Halden v R (1983) 9 A Crim R 30 at 36:
It is not always easy to say where a permissible consideration by a sentencing judge of the circumstances of the commission of an offence ends, and punishment for an offence not charged begins.
The above passage was cited by Refshauge J in Guy v Anderson [2013] ACTSC 5 at [50].
Although it is entirely understandable that the sentencing court would refer to features in a victim impact statement in the course of sentencing, I have concluded that in this case, it has resulted in an error with the sentencing exercise. That finding arises as a direct result of the nature of the charge, the agreed facts placed before the sentencing court, and the failure in the reasoning process of the sentencing court to distinguish between the elements of the offence charged and what is also an element of another (more serious) offence.
The difficulty with what occurred in the present case is perhaps best illustrated by first examining what occurred in De Simoni. The offender had pleaded guilty to a charge of robbery with actual violence, but not the aggravated offence of robbery involving wounding, which would have increased the maximum penalty from 14 years to life imprisonment. Gibbs CJ held at 394 (emphasis added):
If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within [a different offence provision]. On the other hand, if the actual violence used resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter.
The emphasised words in the above extract draw attention to the importance of the charge and in particular, to the need to distinguish between the elements of what has been charged, and the consequences of the conduct charged. The former may be properly taken into account. The latter may not be taken into account if they are not part of the conduct charged (including as set out in any statement of agreed facts) and if they would have warranted a conviction for a separate offence.
In the present case, the charge was that the appellant:
…on 25 March 2017, did assault [the victim] and thereby occasioned to him actual bodily harm.
The agreed statement of facts on which the appellant was to be sentenced referred to the following:
The defendant held a glass in his right hand and struck [the victim] with force, smashing the glass onto the left side of [the victim’s] head. The glassing caused a laceration behind the left ear of [the victim], approximately 1cm wide and 10cm in length.
…
About 6.00am the same day, [the victim] was released from Calvary Hospital where he had received seven sutures to the laceration behind his left ear.
I accept that the nature of the charge of assault occasioning actual bodily harm means that the harm occasioned to the victim is relevant, and generally speaking, the more serious the harm, the more serious the offence.
However, nowhere in the charge or the agreed facts is there a reference to any scar, let alone a “significant and permanent” one. The reference appears to have been a result of the sentencing court incorporating in the reasons what was set out in the victim impact statement, the contents of which have been reproduced above at [24]. The source of the evidence giving rise to the fact taken into consideration by the sentencing court is important here. Because it was not part of the charge, nor was it part of the agreed facts, the scarring was not part of the offending conduct for which the appellant was being sentenced.
That makes this case distinguishable from cases on which the respondent relied, such as Huang. The issue in Huang was very different. In that case, the offender had pleaded guilty to additional offences that were to be taken into account in sentencing the offender for the offence on the indictment. Those additional offences were thus “part of the offending conduct”, and the NSW Court of Criminal Appeal there held that the facts of the offences could therefore be taken into account. The nature and seriousness of those additional offences was relevant to determining an appropriate sentence for the offence on the indictment (see Huang at [54]-[55]).
Here, the brief tendered in the sentencing court included photos showing the injury and the stitches required. However, the evidence did not establish the permanency or significance of the scar that was left, including for example, what size it was and how visible it was. Whatever fed into the finding in the sentencing court, it was one that could have been the subject of the separate charge of causing grievous bodily harm, given that a significant and permanent scar is “a permanent or serious disfiguring of the person”. I accept the appellant’s submission that the finding elevated the conduct to that of grievous bodily harm even though the sentencing court did not ever use those words. The finding squarely brings the conduct within the definition of “grievous bodily harm” under the Crimes Act.
The respondent’s submissions as to what constitutes grievous bodily harm being a question of fact and degree do not really grapple with that issue. To say that the term may involve conduct that is really serious without being permanent (relying on McDevitt) does no more than confirm that the statutory definition is non-exhaustive.
It does not matter that, as the respondent submitted, such a result would have also fallen into damage arising at the upper end of the spectrum of injuries for which the charge of actual bodily harm was laid. On the charge and the agreed facts, that was not the case to which the appellant pleaded. The respondent’s submission failed to appreciate that in this particular case, the injury (the laceration) and one of its consequences (the significant and permanent scar) were two separate things. It was only the injury itself that was the subject of the charge to which the appellant pleaded guilty. In accordance with the discussion of the principle in authorities such as Nguyen and Tracey (see [14] and [15] above), in this case, the physical consequences of the injury were circumstances that could not be taken into account on sentence.
There is force in the respondent’s point that the appellant’s legal representative did not object to the contents of the victim impact statement. However, the prosecution in the sentencing court did not make it clear that the contents of the statement in question required the Court to exercise caution in terms of the potential prejudice to the offender. While there is a degree of flexibility about receiving victim impact statements (as to which see R v Dowlan [1998] 1 VR 123; 92 A Crim R 305 at 140 per Charles JA, cited with approval in R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at [28]), they “cannot be admitted for the purpose of punishing an offender for an offence of which he has not been convicted”: Hooper v The Queen [2003] WASCA 179; 27 WAR 264 per Steytler J at [31], citing both De Simoni and Savvas v The Queen [1995] HCA 29; 183 CLR 1 at 5.
In order to support a finding that the appellant was in fact sentenced for only the charge of causing actual bodily harm, it is not enough to point to contextual matters, such as the fact that the sentencing court referred to the correct offence and maximum penalty, and only referred to the scarring when considering the victim impact statement.
First, as stated above, it is not the case that the sentencing court was merely setting out the evidence as opposed to making a finding. There was not, for example, any distinction between what the victim said and what the court accepted as fact. The words used by the sentencing court did not merely repeat what was said in the victim impact statement. On the contrary, it appears that the statement referring to a significant and permanent scar was a finding based on the contents of the victim impact statement, which only referred to physical scarring on the neck.
Second and more importantly, the reasons in the sentencing court lack any indication that, because of the combination of the definition of grievous bodily harm in the Crimes Act and the fact that it was not part of the elements or offending conduct with which the appellant had been charged, there was a need to put aside the consequence of the injury in order to comply with the De Simoni principle. It is regrettable that neither the prosecution in the sentencing court nor the legal representative for the appellant assisted the Chief Magistrate by raising that issue. In order to properly assist the sentencing court in the efficient disposal of the very busy lists, matters about which the sentencing court should exercise caution arising from small but significant details are precisely the types of considerations that counsel should raise.
In this case, the victim impact statement travelled beyond the circumstances of the offending that were permissibly to be taken into account. If the sentencing court was recounting what was described by the victim, and not accepting the contents of the victim’s statement as further facts on which an offender was to be sentenced, that needed to be made clear, particularly where the further material resulted in a finding of fact that elevated the seriousness of the conduct. Those two matters having been elided here, it is not the case that, in context, the appellant was only sentenced on the matters referred to at the beginning of the reasons for sentence.
The respondent’s submission that there was no reference to the scar being “aggravating” also does not advance the position. It is difficult to see how a reference to a significant and permanent scar as having been taken into account by the sentencing court could be anything other than aggravating.
A further complicating factor is that shortly after making the finding that the victim will be left with a significant and permanent scar, the sentencing court referred to Ross v Mothersole [2010] ACTSC 125 (Mothersole), stating (emphasis added):
I have been provided by the prosecutor with the decision of former Refshauge J in the matter of [Mothersole]. His Honour, with respect, quite appropriately notes at paragraph 88 that:
“glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long, obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody.
Although it may have been the intention in the sentencing court to refer to Mothersole in order to underline the seriousness of a glassing offence, in the context of the earlier reference to the significant and permanent scar, the extract also serves to confirm that the sentencing court had taken scarring of the victim into account, as submitted by the appellant.
Accordingly, I cannot accept the respondent’s submissions as to the context of the reasons demonstrating that despite the reference to the scar, the appellant was in fact sentenced only on the charge of actual bodily harm. The sentencing court has inadvertently, but impermissibly, taken account of conduct that could have been separately charged and Ground 1 has been sustained.
Ground 2: Did the Chief Magistrate err in failing to consider, properly or at all, the pre-sentence report?
The error referred to above is sufficient to enliven the Court’s re-exercise of the discretion on sentence. This ground has been considered for completeness.
Nature of the error alleged
The appellant’s complaint is that the sentencing court did not make any reference during the sentencing hearing to the opinions contained in the pre-sentence report (PSR) concerning alternative sentencing options. The appellant submitted that this gives rise to the inference that the sentencing court failed to consider “properly or at all” alternative sentencing options and instead proceeded straight to imprisonment.
The above complaint itself has two parts:
(a) First, a failure to take into account the contents of the PSR (that is, a failure to take into account a relevant consideration), including the opinions expressed therein as to alternative sentencing options; and
(b) Second, a failure to consider alternatives to imprisonment, instead proceeding straight to a sentence of imprisonment.
Was there a failure to take into account the contents of the PSR?
The appellant submitted that, aside from admitting the PSR to evidence, the sentencing court did not refer at all to the opinions of the authors in its reasons for sentence. Some reference should have been made to the low risk of reoffending, the appellant’s remorse, and critically, the alternatives to imprisonment.
The respondent submitted that it is clear from the sentencing remarks that the sentencing court had considered and had taken into account the contents of the PSR. The respondent drew attention to matters contained in the PSR which were neither the subject of submissions by the appellant’s legal representative nor contained in the other tendered material yet were referred to in the reasons. The respondent submitted that what weight was given to the contents and the opinions expressed in the course of the exercise of the sentencing discretion was entirely a matter for the sentencing court and no error has been demonstrated.
Further, the respondent submitted that a failure by the sentencing court to expressly refer to some matters and only briefly mention others does not permit the inference that the material has not been taken into account: the general law does not invite appellate courts to undertake such a granular analysis. The respondent drew attention to R v UG [2020] ACTCA 8; 281 A Crim R 291 (‘UG’), where the Court of Appeal stated at [62] – [64]:
62. The sentencing judge’s remarks were relatively brief, but his Honour did commence with an assessment of the objective seriousness of the offences …
63. Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons. The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim. We agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the observations concern sentencing within a different statutory framework (at [7]–[8]):
There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided.
…
The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of the Appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that.
64. There was no error in the way in which the sentencing judge expressed his reasons for sentence. The fact that there was no reference to some matters and only brief reference to others does not, of itself, permit an inference that his Honour failed to take into account all the evidence that was relevant to an assessment of the objective seriousness of the offending conduct.
The respondent’s submissions should be accepted. I do not accept that in the present case, the sentencing court failed to take into account the matters referred to in the PSR.
As a starting point, the sentencing court referred to the PSR as part of the evidence taken into account for the purposes of sentencing, stating (emphasis added):
For the purposes of sentencing you, I have the statement of facts which was amended and agreed in respect to the matter. Photographs of the victim, both at the scene and following his hospital treatment. A copy of your prior criminal history both in the ACT and New South Wales. A copy of a pre-sentence report which was prepared in respect to you for today’s proceedings. A copy of the victim impact statement prepared by Mr Dyson, the victim in the matter. …
Next, it is clear that the sentencing court had actually read the PSR. The PSR outlines the appellant’s background, stating:
Mr Dang reported he was born in Vietnam and relocated to Australia when he was approximately eight years old. He stated that although he gets along with his four siblings, he does not see them often. He stated his father, who drank excessively and was abusive, has since passed away and Mr Dang reported a positive relationship with his mother, who reportedly requires care from Mr Dang multiple times a week.
The offender stated he married four years ago and the couple do not yet have children.
Mr Dang reported he completed Year 12 and had previously worked in his family’s restaurant. Most recently, he reported being employed as a nail technician and stated he and his wife are both in receipt of wages. He reported no financial issues.
The sentencing reasons largely reflect these comments:
In terms of yourself, you are a 41 year old man originating from Vietnam but having come to Australia a significant number of years before. You are married. You currently have no children. You care for your mother who has some significant health issues. It is not clear to me that you are the only person who is able to care for her or the extent of assistance that she needs, but you do generally assist with her. She is 74 years of age and has a number of difficulties, including renal impairment and gastroesophageal reflux disease.
Most of the matters referred to in that extract were not referred to anywhere else in the evidence or the submissions before the sentencing court. Accordingly, the PSR was the only source for that aspect of the reasons on sentence.
In any event, there is no obligation on a sentencing court to recite the source of each item of evidence taken into account. What the sentencing court is concerned with is the substance of the matters contained in the evidence.
In that regard, the appellant cites three specific matters in the PSR that were overlooked by the sentencing court: the appellant’s low risk of reoffending, the appellant’s remorse and the alternatives to imprisonment.
With regard to the appellant’s low risk of reoffending, the PSR states (emphasis added):
Mr Dang stated he has previously engaged in occasional binge drinking but claimed to be abstinent from alcohol since the night of the offence, stating his wife has resolved to leave him should he return to alcohol consumption. Regarding drug use, Mr Dang reported trying multiple illicit substances as a teenager but denied any drug use in the last 20 years.
…
Mr Dang was assessed as low risk of general reoffending. His only criminogenic risk appears to be his alcohol abuse which he claimed to have ceased since the offence. He appears to have multiple protective factors, such as stable familial and marital relationships, stable accommodation and employment and a lack of financial issues and mental health issues. Given the role alcohol played in his offending, it is commendable he has elected to cease alcohol use. Should he continue in this manner, it is unlikely that his risk of reoffending will increase.
The sentencing reasons stated (emphasis added):
I am to consider the sentencing provisions in relation to this offence, particularly those detailed in section 7 of the Crimes Sentencing Act, … there is a need for general deterrence. As the prosecutor said, violence in the social context, particularly related to the use of alcohol, is significant and whilst it is put before me that you are no longer using alcohol and that your wife has said that she will leave you if you do, it certainly was implicated on this occasion. To that extent there is a need for specific deterrence.
A comparison of the emphasised parts of the extracts demonstrates that the sentencing court engaged with the material presented, assimilated it, and took it into account as part of a weighing process when deciding how to deal with the appellant. In those circumstances, the sentencing court did not need to specifically make a finding that the appellant was a low risk of reoffending in order to demonstrate that the opinions expressed in the PSR had been taken into account. So much was implied by what was said in the extract above – a need for specific deterrence only to a certain extent.
In relation to the appellant’s remorse, the appellant relied on the opinion in the PSR to argue that “the appellant had expressed regrets for harming the victim and expressed shame for his actions”. The PSR stated:
Mr Dang stated that due to his level of intoxication, he had little recall of the offence. He stated he regrets causing harm to the victim and expressed shame for his actions.
In the sentencing reasons, the sentencing court stated (emphasis added):
It has been put before the court that you experienced shame and remorse. I note that you did not volunteer yourself to police. You were found as a result of their enquiries. You have pleaded guilty but it was at a very late stage in this matter, so whilst I have no reason to reject the notion that you do feel shame, which is entirely appropriate in the circumstances, and no doubt some degree of remorse, it is something which has come very late in the piece.
There is no basis for inferring that the remorse of the appellant referred to in the PSR was not considered. It was simply that it was clearly given little weight for the reasons explained in the extract above. The weight given to the appellant’s remorse does not demonstrate any failure to give proper consideration to that matter.
The final matter contained in the PSR which the appellant says was not taken into account was the alternatives to imprisonment set out in that report. It is dealt with as part of the consideration of the second limb of this ground.
Overall, it is evident from the sentencing reasons in the sentencing court that there was intellectual engagement with the contents of the PSR demonstrative of the fact that proper consideration was given to that item of evidence and the opinions contained within it.
Was there a failure to consider alternatives to imprisonment?
The relevant part of the reasoning in the sentencing court is in two places in the transcript. First, when hearing submissions from the appellant’s legal representative, her Honour said:
I should be clear, Ms Duffy, I don’t know if it will influence any submissions you make, but I am contemplating a sentence of imprisonment.
Ms Duffy, the appellant’s legal representative, then sought that the term of imprisonment be suspended.
When sentencing, the sentencing court considered the potential role for rehabilitation, before finding:
It is clear that an offence of this nature is one in which the section 10 threshold of imprisonment, being a sentence of last resort, is crossed. I am satisfied that that is so today.
Taking into account the nature of the offending and the circumstances, the sentence which I impose is one of 15 months, reduced from 18 months by way of the plea of guilty.
The appellant submitted that the sentencing court “simply failed to consider alternative sentencing options properly, or at all, and instead proceeded straight to imprisonment.” Another way to characterise such a complaint is that the approach resulted in a sentence that was manifestly excessive, as to which see KN v Frizzell [2020] ACTSC 217 at [94].
The respondent submits that the sentencing court did not err, but instead clearly expressed a view regarding a sentence of imprisonment to the appellant’s legal representative in the course of inviting further submissions. The appellant’s legal representative took no issue with the disclosure of what the sentencing court had in contemplation, only seeking that the term of imprisonment be fully suspended.
The respondent relied upon Field v Unas [2019] ACTSC 13 (Field v Unas) at [17], submitting that the starting point is s 10 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Relevant to this ground, s 10(2) is in the following terms:
10 Imprisonment
…
(2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
…
In Field v Unas, Murrell CJ outlined the approach required by s 10 of the Sentencing Act. I respectfully adopt it as it encapsulates succinctly both the proper approach for a sentencing court to take and the approach the Court takes in considering the reasons on appeal. The relevant passage is at [18]-[20] (emphasis added):
18. These provisions make it clear that, before a court imposes a sentence of imprisonment, it must be satisfied that no other penalty but imprisonment is appropriate. Section 10(3) then provides a “default position”; that a sentence of imprisonment must be served by full-time detention unless the Court orders otherwise, or paragraph (b) applies. In Dinsdale v The Queen [2000] HCA 54; 200 CLR 321 at [79], Kirby J said:
The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”.
(footnotes omitted)
19. Similarly, in the ACT, when imposing any sentence of imprisonment, the sentencing court must proceed in two stages. First, a determination of whether it is necessary to impose a sentence of imprisonment; and, secondly, a determination of the manner in which that sentence should be served: The Queen v DK [2016] ACTCA 7 at [27] and [31].
20. As to the need for the sentencing court to explain its decision, Howie J (with whom Hodgson and Levine JJ agreed) stated in R v Zamagias [2002] NSWCCA 17 at [30]:
Having determined the appropriate sentence, the court must explain the sentence imposed and this may require in an appropriate case some discussion of the alternatives available and why a particular alternative has been chosen. But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous.
(citations omitted)
As the emphasised words confirm, a sentencing court does not need to expressly refer to the alternatives to imprisonment and individually rule each one out in order to demonstrate that each has been considered. What is important is that the reasons are adequate to enable a proper understanding of the basis upon which a decision has been reached. Failure to do so may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 and O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 at [20]. Each of those authorities was cited in Bethke v Phelan [2016] ACTSC 328per Murrell CJ at [33].
The respondent drew attention to the decision of ZL v Corey [2020] ACTSC 143 (ZL), where it was stated at [81] that alternatives to imprisonment were not explicitly considered and should have been so considered. It was submitted that ZL did not accord with the established principles set out in Field v Unas. I do not read the statement in ZL as being a statement of general principle; rather, it was a statement as to what was considered appropriate on the facts and circumstances of that particular case. So read, the statement is not inconsistent with what has been set out above, namely that some discussion of the alternatives available may be required in an appropriate case. The facts of the case in ZL were very different to the offence under consideration here.
In the present case, I am not satisfied there was any error in relation to this aspect of the reasoning in the sentencing court. The context to the exchange between the Chief Magistrate and the legal representative is critical to understanding why the Chief Magistrate said that a sentence of imprisonment was in contemplation at that stage of the hearing.
In the sentencing court, the legal representative for the appellant commenced by handing up relevant documents. She then made submissions which focussed on the appellant’s remorse and his acknowledgement that “his behaviour on that night was unacceptable”. The submissions turned to one unrelated matter on the appellant’s criminal antecedents, and the support of the appellant’s family. The legal representative then said:
Your Honour, in sentencing my client I would ask you take into account the fact that he hasn’t been before the court since 2004 and he’s been in no further trouble and there haven’t been any further charges since the date of this offence on 25 March last year. It is, of course, your Honour, an extremely serious offence, but I would submit, your Honour, that there are factors your Honour can take into account in my client’s favour. He is deeply remorseful and ashamed of this.
I don’t have any further submissions, your Honour.
It was in response to the conclusion of the submissions that the sentencing court indicated a sentence of imprisonment was in contemplation. In context, it is clear that the sentencing court was raising the possibility of imprisonment more as a matter of procedural fairness to ensure that the legal representative had fully appreciated the issue and had an opportunity to deal with it, as the previous submissions of the legal representative had very much glossed over or minimised the seriousness of the offence.
Accordingly, the mere fact that the Chief Magistrate indicated to the legal representative after she had concluded her address that a sentence of imprisonment was in contemplation does not give rise to any inference that alternatives to imprisonment were not also in contemplation.
In response to the Chief Magistrate’s comment, the legal representative for the appellant addressed the sentencing court on how a sentence of imprisonment might be served, such as through the sentence being suspended, rather than addressing other alternatives to imprisonment as being realistic in the circumstances of the case. That is no criticism of the legal representative. Rather, it is an indication that those involved in the hearing at first instance properly understood that, on the facts before the sentencing court, this was not a borderline case and imprisonment was the only appropriate sentence.
The respondent then addressed the sentencing court. She addressed the seriousness of the offence and put before the sentencing court Mothersole, a judgment which has already been discussed in detail in relation to Ground 1. Again, Refshauge J stated at [88] that glassing was “a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody”. The respondent went on in submissions to return to that guidance in Mothersole, submitting:
The nature of the offence in itself, it is my submission, is serious enough, and in terms of his criminal history that does not – it is not such a significant mitigating factor to not warrant as what Refshauge J has said “ordinarily a term of imprisonment”.
That submission was incorporated into the reasons in the sentencing court, as has already been discussed above. The Chief Magistrate then went on to state (emphasis added):
As noted, you have a limited criminal history, and perhaps there is a greater role here in relation to rehabilitation. I’ve had regard also to the decision of Burns J in R v Saulala [2016] ACTSC 48 where again there was a glassing in a public bar, a plea of guilty and his Honour imposed a sentence of 16 months’ imprisonment, served partially by way of periodic detention with a suspended sentence order in relation to a person with a limited criminal history.
It is clear that an offence of this nature is one in which the section 10 threshold of imprisonment, being a sentence of last resort, is crossed. I am satisfied that that is so today.
When regard is had to the context set out above, it is apparent that the sentencing court well appreciated that imprisonment was a sentence of last resort, but considered that the serious nature of the offence meant that ordinarily imprisonment was appropriate. That is why the sentencing court spoke first of “an offence of this nature” as crossing the threshold. The sentencing court then went on to expressly consider whether, in the circumstances of this particular case, the threshold of imprisonment as a last resort was crossed, finding “that that is so today”.
It is for the sentencing court alone to decide the sentence to be imposed – the submissions of counsel or opinions in a pre-sentence report may assist, but that does not bind the sentencing court in any sense: see GAS v The Queen; SJK v R [2004] HCA 22; 217 CLR 198 at 211.
On a fair reading of the entirety of the hearing and then the sentencing reasons, this was not a case where the sentencing court fixated on imprisonment before considering other options. This was also not a case where the sentencing court only considered imprisonment on the basis that the offence was so serious. Rather, this was a case where the sentencing court first gave the legal representative for the appellant an opportunity to squarely address the issue of sentencing alternatives, and then, applying legal principle to the particular considerations on sentence before it, ultimately decided that no alternative other than imprisonment was appropriate.
During the hearing, the appellant made a further submission that the sentencing court should have considered the making of an intensive correction order (ICO) in place of a sentence of full-time imprisonment. However, as the respondent submitted, that option was neither sought nor pressed. It would have necessitated compliance with the requirements of Part 5.4 of the Sentencing Act. What the appellant sought on appeal through such a submission is contrary to what his legal representative expressly sought in the sentencing court below, which was a suspended sentence. The only difference between what was sought and what was ordered was that the legal representative submitted that the entirety of the sentence should be suspended.
Moreover, it is clear that the sentencing court did give consideration to whether alternatives to imprisonment by way of full-time custody were appropriate, by the very fact that part of the sentence imposed was suspended. There is nothing in the sentencing reasons that suggests the Chief Magistrate erroneously precluded any consideration of an available outcome. It was simply that the selection of one alternative necessarily precluded the operation of the other because there is no capacity under the Sentencing Act to impose a sentence that is a combination of partial suspension followed by an ICO for the remainder of the sentence. It was not incumbent upon the sentencing court to explain in the reasons for sentence all the various permutations of a sentence that might be available and then why each other option had been ruled out. As Sully J stated in R v LRS [2001] NSWCCA 338 at [66]:
[A] sentencing judge [is not required to] meticulously set out, as though in a prescribed check list, a precise series of procedural steps … and … thereafter meticulously [mark] each with a tick or a cross as the Judge might think appropriate.
For these reasons, Ground 2 is not made out.
Grounds 3 and 4: manifest excess and hardship evidence
The parties’ arguments in relation to Grounds 3 and 4 included detailed submissions about the circumstances in which the Court might receive further evidence on appeal (whether it is described as new, further or fresh evidence) pursuant to s 214 of the Magistrates Court Act. The evidence was relevant to the offender’s prospects of re-offending and rehabilitation and hardship to the offender.
However, the respondent has accepted that if error was established with respect to either of Grounds 1 or 2, then the sentencing discretion is re-opened in accordance with the principle set out in Kentwell at [35] (discussed earlier at para [11] of these reasons).
There is some uncertainty about the proper exercise of the Court’s discretion in relation to evidence admitted under s 214 of the Magistrates Court Act and the consequences of admitting the evidence: see Kibblewhite v Buik [2020] ACTSC 132 at [4]-[7]. The parties made detailed submissions attempting to reconcile the competing authorities. However, it would be somewhat artificial to consider Grounds 3 and 4 when error has already been established. In that event, an appellate court may receive evidence concerning the period since the original sentence hearing (Kentwell at [43]), including evidence relevant to the offender’s rehabilitation: Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 at [11]. The additional evidence sought to be tendered will thus already be admitted for a limited purpose in accordance with those authorities.
Accordingly, notwithstanding the perceived uncertainty and the legal issues were comprehensively argued, it is unnecessary to reconcile the authorities in order to dispose of the present appeal.
Re-sentencing the appellant
Section 33 of the Sentencing Act sets out the relevant factors a Court should take into account. I have had regard to those considerations, to the extent that they are applicable, and the evidence relevant to those factors is known to the Court, discussed further below.
As stated above, the maximum available penalty for the offence of assault occasioning actual bodily harm is imprisonment for 5 years.
I have already discussed the particular facts relating to the objective seriousness of the conduct in relation to the consideration of Ground 1 above. As accepted by the appellant, the circumstances of the original offence are undoubtedly serious. They occurred while the appellant was intoxicated. Confined to those matters recorded in the statement of agreed facts, the conduct nevertheless remains in the upper-range of objective seriousness for the offence of assault occasioning actual bodily harm.
In terms of subjective circumstances, the matters that remain unchanged include the appellant’s background, set out at [58] of these reasons above, the appellant’s shame and remorse, and the fact that there was a belated guilty plea. In my view it warrants a discount of approximately 15 per cent.
The impact to the victim has been taken into account, but only to the extent that the victim has taken the trouble to put forward a somewhat sparse victim impact statement. The reference to scarring in that impact statement is not a consideration to be given weight in the circumstances of this particular offence, for the reasons given in relation to Ground 1 above.
The key features which indicate a different sentence at law is warranted arise from the additional evidence put before the Court on resentence.
The appellant commenced to serve his sentence on 20 December 2018. Twelve days into the full-time component of the appellant’s detention, the appellant was viciously and repeatedly bashed by a fellow inmate. That incident has itself been the subject of a charge and conviction in this court: see R v Bedford [2019] ACTSC 282.
The appellant was severely injured. It is not in dispute, indeed, it is beyond doubt, that the appellant’s injuries included a traumatic brain injury, a left carotid artery dissection, a large laceration resulting in permanent scarring, a fractured nose and a number of other less serious injuries. The appellant was hospitalised where he experienced a number of complications arising from his injuries. He was put into an induced coma. He has since experienced numerous cognitive and ongoing psychological consequences.
There was comprehensive medical evidence before the Court which establishes that the appellant now has severe cognitive impairment, secondary to his traumatic head injury. It suffices to say that the appellant has a range of issues, including severely slowed speed of information processing, dysfunctional new learning and memory, mild to moderate pain in the right upper body area and an inability to effectively manage daily affairs, requiring some form of supervision in many daily matters.
Professor Boer, clinical psychologist, gave an opinion on 3 April 2020 that the appellant’s ongoing recovery from the traumatic brain injury and associated cognitive impairment could be negatively impacted by any further incarceration, given the Alexander Maconachie Centre (AMC) is the source of the traumatic anxiety disorder from which the appellant now suffers. I accept that evidence. Although the respondent objected in principle to the admission of the evidence if no error was otherwise established, the veracity of the opinions expressed in the medical evidence was not challenged.
The appellant’s current medical condition, including his severely diminished mental and physical health, are relevant to a number of considerations on sentence. The first is that the sentencing objective of specific deterrence has all but evaporated given the unlikelihood of the appellant ever recovering his full cognitive capabilities. That ties in with the importance of rehabilitation. The risk of re-offending is extremely low. The appellant has been on bail since 10 January 2019 without report or incident.
General deterrence also takes on less significance, due to the particular circumstances of this offender, regarding his permanently affected mental state and current level of functioning.
Any further time in full-time custody will now be more difficult, both physically and psychologically, than it would otherwise be if the appellant were completely well. I am also mindful of the risk (supported by the medical evidence put before the Court, part of which has been referred to above) that a return to the AMC may of itself worsen the psychological health of the appellant.
Notwithstanding that the orders that are the subject of this appeal have been stayed pending the resolution of the appeal, the appellant has also since complied with the compensation order and made reparations, as ordered by the sentencing court.
The financial circumstances of the appellant are that he may not be able to return to work. The additional evidence is that the appellant is now in receipt of a pension from Centrelink. He therefore has no capacity to pay a fine.
With all these additional considerations now in the mix, a sentence of imprisonment remains appropriate, as no other alternative would do justice to the circumstances of the original offence and its objective seriousness. The “last resort” requirement in s 10 of the Sentencing Act is thus satisfied. However, a shorter period of imprisonment is now called for, because a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives (see Thorn v Laidlaw [2005] ACTCA 49 at [30]) and as discussed above, a number of those sentencing objectives have either been addressed, met, or deserve less weight, due to the altered state of affairs since the original sentence was imposed. I have also taken into account that the appellant has already spent some time in full time custody, so that the term of imprisonment should either be backdated to take that time into account or reduced to properly reflect that fact. The particular circumstances here are that the period in full time custody was short and there has been a significant gap in time since the appellant was last incarcerated. Reducing the term seems to me to best take account of those matters. Accordingly, a term of 10 months’ imprisonment is appropriate. The sentence should now be wholly suspended upon the appellant entering into a good behaviour order for a period of 10 months.
I will not disturb the reparation order given that it has already been paid and addresses more particularly victim impact.
Orders
The orders of the Court are as follows:
(1)The appeal is upheld.
(2)Orders 1 and 2 of the sentence imposed by the ACT Magistrates Court on 20 December 2018 are set aside and the appellant is resentenced as follows:
(a)In respect of the charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (CC2017/7057), the offender is convicted and sentenced to imprisonment for 10 months (reduced from 12 months).
(b)The sentence is to be wholly suspended upon the appellant entering into a good behaviour order for a period of 10 months, commencing on 5 August 2021 and ending on 4 June 2022, during which time he is to accept the core conditions of such an order pursuant to s 86 of the Crimes (Sentencing) Act 2005 (ACT), including supervision by the Director General, and to obey all reasonable directions of the Director General for a period of 10 months, or such lesser period as deemed appropriate.
(3)The compensation order imposed by the ACT Magistrates Court, dated 20 December 2018, is confirmed.
| I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Zoe Saunders Date: 5 August 2021 |
************
Amendments
22 September 2021 Replace “CLR at 160” with “CLR 111 at 160” Paragraph: [11]
Replace “Court” with “sentencing court” Paragraph: [44]
Replace “or” with “nor” Paragraph: [53]
Replace “demonstrative” with “demonstrate” Paragraph: [77]
3
30
4