Dank Huu Phan v R No. SCCRM 94/292 Judgment No. 4733 Number of Pages 4 Criminal Law and Procedure Sentencing

[1994] SASC 4733

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL PRIOR(2), OLSSON(3) AND PERRY(1) JJ

CWDS
Criminal law and procedure - sentencing - common assault - Appeal by defendant from suspended sentence of 2 years imprisonment with a non-parole period of 18 months imposed on two admitted charges of common assault - appellant, a Vietnamese man of 32 years, pushed barrel of loaded shotgun into the ribs of the first victim and punched the second victim in the stomach - appellant suffering from long-standing paranoid psychotic illness for which he had been treated in a mental institution for some time before the offences - also suffered from addiction to alcohol - seven months spent in custody on remand before sentencing - held, allowing the appeal, that the sentence was manifestly excessive - sentence reduced to 15 months with 9 months non-parole period.

HRNG ADELAIDE, 16 August 1994 #DATE 16:8:1994

Counsel for appellant:     Mr M. Boylan

Solicitors for appellant:    Mr G. Mancini

Counsel for respondent:     Ms W. Abraham

Solicitors for respondent: P.J.L. Rofe QC

ORDER
Appeal allowed.

JUDGE1 PERRY J This is an appeal against a suspended sentence of 2 years' imprisonment with a non-parole period of 18 months imposed on a plea of guilty by the appellant in the District Court to two counts of common assault.

2. Conditions of the bond upon which the sentence was suspended, which was a good behaviour bond for a period of 2 years, included conditions that the appellant undergo such medical or psychiatric treatment as might be directed by his probation officer, that he abstain from taking any prohibited substances as defined by the Controlled Substances Act 1984, and that he abstain from consuming alcohol.

3. At the same time, an order was made under s.299a of the Criminal LawConsolidation Act prohibiting the appellant from using or possessing a firearm of any kind until further order. A firearm, namely, a pump action shotgun used in connection with the offences, was ordered to be forfeited.

4. The appellant is a 32 year old Vietnamese man who migrated to Australia in 1989. The charges arose out of two separate incidents which occurred on 7 August 1993. The appellant had just been released from serving a term of imprisonment for non-payment of fines associated with certain driving offences. On returning to his home, he found that most of his possessions were gone. He believed that the victim of the second assault had been responsible for removing them.

5. Be that as it may, on the day in question, armed with a shotgun, the appellant entered the house of the first victim, demanding to know where the second victim could be found.

6. It is clear enough on the evidence that at the time he was drunk and in an agitated state. He threatened to shoot the victim and proceeded to load and unload the gun in a threatening manner. At one stage, he pushed the barrel of the gun against the right side of the ribs of the victim. It is that act which constitutes the first assault.

7. About half an hour later, after continuing to load and unload the gun in the presence of the victim, he walked out of the victim's house, on the way discharging a shot through the floorboards. The appellant then made his way to the second victim's house, where he found him in the driveway. He walked up to him and punched him in the stomach. It is that act which constitutes the second assault charged.

8. When the appellant ran back to his car and attempted to remove the shotgun from it, a struggle ensued, during the course of which the police were called.

9. It does not appear that either victim was injured.

10. The evidence before the learned sentencing Judge indicated that the appellant had been suffering for some time before the offences from a serious mental illness. Earlier in the same year, between 28 June and 6 July 1993, he had been admitted to Hillcrest Mental Hospital, where he was diagnosed as having a two or three year history of an evolving paranoid psychotic illness with secondary depression. This was compounded by problems relating to excessive consumption of alcohol, which separately required the appellant's admission to Queen Elizabeth Hospital for some days in June 1993 for treatment of alcoholic hepatitis and other associated conditions.

11. The appellant was taken into custody upon his arrest on 7 August 1993, the day of the offences, and remained in custody for some seven months to the date upon which he was sentenced. It is common ground between counsel that that period in custody is referable to the appellant's remand on the offences in question.

12. During that time, for over a month between September and October 1993 he was transferred from Adelaide Remand Centre to James Nash House because of his mental condition, where he received further treatment for it.

13. During the course of his sentencing remarks, the learned sentencing Judge said:
    "Your record of antecedents does not suggest you are a
    violent man, and I accept the submissions put to me that
    alcohol and your mental illness was responsible for your
    behaviour, and that these offences appear to be out of
    character. I am told that provided you stop drinking, take
    medication appropriate to your mental condition and
    continue to receive proper medical advice and treatment,
    this sort of behaviour should not recur. I am mindful of
    the fact that you have already spent seven months in
    custody on remand, and that your return to the community on
    bail to live with your brother since 2 February has been
    successful. It is the involvement of the shotgun that
    makes these assaults very serious. Clearly, they merit
    imprisonment. However, the matters raised in mitigation
    are sufficient to enable me to suspend such a sentence."

14. His Honour then went on to impose the sentence to which I have referred.

15. The maximum penalty for each assault was two years' imprisonment.

16. On two separate but related counts which had been brought up to the sentencing Judge from the Magistrates Court and upon which the appellant had pleaded guilty, namely, counts of possessing a firearm without a license and unlawful possession of a firearm, the learned sentencing Judge entered a conviction without penalty. Clearly, the learned Judge thought that the penalty imposed on the major offence was sufficient to comprehend all of the offending.

17. Mr Boylan, who appeared for the appellant on the hearing of the appeal, advanced three grounds, namely, that the learned sentencing Judge ought not to have imposed the condition attaching to the bond, that the defendant not consume prohibited substances, that he ought not to have imposed the condition with respect to consumption of alcohol, and that the sentence of imprisonment, albeit suspended, was, in all the circumstances, manifestly excessive.

18. Dealing with the first ground, it is to be noticed that in his record of convictions there were two previous convictions of the appellant in 1992 and 1993 for possessing a drug of dependence. It was not, in my opinion, unreasonable for the condition relating to prohibited substances to be inserted in the conditions of the bond. While it is true that any breach of the law would in any event operate as a breach of the bond, insertion of that condition serves as a reminder to the appellant.

19. I have more hesitation with respect to the condition of abstaining from alcohol. While, as Ms Abraham points out, such a condition may be imposed under the Sentencing Act, it is difficult to police, and imposes a heavy burden on someone who is addicted, or on the way to being addicted, to alcohol.

20. In the particular circumstances of this case, I think the condition of the bond that the appellant undergo medical or psychiatric treatment was sufficient, leaving it to those responsible for supervising the medical or psychiatric treatment to have regard to the alcohol problem. I would, therefore, allow the appeal as to that aspect of the matter.

21. As to the attack on the head sentence, although the learned sentencing Judge referred to the period on remand and the appellant's mental illness, and although Mr Boylan has not suggested that there is any manifest error in the learned sentencing Judge's remarks, in my opinion, the length of the sentence imposed indicates a failure to make proper allowance for those factors.

22. In my opinion, although suspended, the sentence of two years' imprisonment was manifestly excessive, particularly bearing in mind the seven months in custody which had already been served. A proper sentence would have been a term of imprisonment of 15 months with a non-parole period of nine months.

23. I would allow the appeal to vary the conditions of the bond in the manner which I have indicated, that is, by deleting condition 7 as to abstaining from consumption of alcohol, and by reducing the head sentence to 15 months' imprisonment and the non-parole period to 9 months. I would not interfere with the other orders, including the order suspending the sentence, and the sentences on the firearm charges or the orders as to possession and use of firearms.

JUDGE2 PRIOR J I agree.

JUDGE3 OLSSON J I also agree.