Deng v The King
[2024] VSCA 19
•6 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0246 |
| PADIET DENG | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 February 2024 |
| DATE OF JUDGMENT: | 6 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 19 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1514 (Judge Wraight) |
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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Aggravated burglary, theft, possess drug of dependence, commit indictable offence whilst on bail – TES 4 years and 4 months, with NPP of 2 years and 2 months – Manifest excess – Whether sentence of 4 years and 4 months for aggravated burglary manifestly excessive – Parity – Whether impermissible disparity between applicant’s sentence and sentences of co-accused – Complaints of manifest excess and impermissible disparity not reasonably arguable – Applicant’s proposed appeal without merit – Futile to grant extension of time – Application for extension of time refused.
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| Counsel | |||
| Applicant: | Mr C Mandy SC | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | Burn City Legal | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
MACAULAY JA:
On 16 August 2023, the applicant, together with his co-offenders, Kensa Ibsa, Bishoy George and Eric Bizimungu, pleaded guilty in the County Court to one charge of aggravated burglary,[1] one charge of theft[2] and one charge of possessing a drug of dependence.[3] The applicant, George and Bizimungu also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail.[4]
[1]Contrary to s 77(1) of the Crimes Act 1958.
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 30B of the Bail Act 1977.
A joint plea hearing was conducted and, on 24 August 2023, the applicant, Ibsa, George and Bizimungu were sentenced as follows:
The Applicant Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary (enter with intent to steal, person present and offensive weapon) 25 years 4 years and 4 months Base 3
Theft
10 years
7 days
4
Possess drug of dependence (cannabis)
5 years
1 month
Related Summary Offence 6
Commit indictable offence whilst on bail
3 months or
30 penalty units
Convicted and
discharged
TotalEffectiveSentence: 4 years and 4 months Non-ParolePeriod: 2 years and 2 months Section6AAAStatement: 5 years and 6 months with a non-parole period of 3 years and 6 months Otherrelevantorders: 610 days declared as pre-sentence detention
Kensa Ibsa Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary (enter with intent to steal, person present and offensive
weapon)
25 years 118 days with a 3 year
CCO
Base 3
Theft
10 years
Aggregate
fine of $1,000
4
Possess drug of dependence (cannabis)
5 years
Aggregate
fine of $1,000
Related Summary Offence 6
Commit indictable offence whilst on bail
3 months or
30 penalty units
Convicted and discharged
TotalEffectiveSentence: 118 days (time served) with a 3 year Community Correction Order (‘CCO’) Non-ParolePeriod: N/A Section6AAAStatement: 3 years with a non-parole period of 20 months Otherrelevantorders: 118 days declared as pre-sentence detention
Bishoy George Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary (enter with intent to steal, person present and offensive weapon) 25 years 102 days with a 3 year CCO Base 3
Theft
10 years
Aggregate
fine of $1,000
4
Possess drug of dependence (cannabis)
5 years
Aggregate
fine of $1,000
TotalEffectiveSentence: 102 days (time served) with a 3 year Community Correction Order (‘CCO’) Non-ParolePeriod: N/A Section6AAAStatement: 3 years with a non-parole period of 20 months Otherrelevantorders: 102 days declared as pre-sentence detention
Eric Bizimungu Charge Offence Maximum Sentence Cumulation 2
Aggravated burglary (enter with intent to steal, person present)
25 years
4 years
Base
3
Theft
10 years
7 days
4
Possess drug of dependence (cannabis)
5 years
1 month
Related Summary Offence 6
Commit indictable offence whilst on bail
3 months or
30 penalty units
Convicted and discharged
TotalEffectiveSentence: 4 years Non-ParolePeriod: 2 years Section6AAAStatement: 5 years with a non-parole period of 3 years and 3 months Otherrelevantorders: 407 days declared as pre-sentence detention
On 21 December 2023, the applicant filed an application for an extension of time to file and serve an application for leave to appeal against sentence. His proposed grounds of appeal are:
1.The sentence imposed on charge 1 is manifestly excessive in all of the circumstances.
2.The sentence imposed on the applicant does not properly reflect the principle of parity.
The applicant’s application for an extension of time was supported by an affidavit affirmed by his solicitor, Luke Tizzani. The extension of time application requires consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[5] In his affidavit, Mr Tizzani explains the reasons for the applicant’s delay. In essence, the delay appears to have been attributable to previous counsel retained to draw the applicant’s appeal papers. In the circumstances, we will commence our analysis by considering the merits of the applicant’s proposed grounds of appeal.
[5]See Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33] (French CJ, Hayne, Bell and Keane JJ); Derwish v The Queen [2016] VSCA 72, [55]–[57] (Weinberg AP, Redlich and Kyrou JJA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA); Chen v The Queen [2017] VSCA 335, [22]–[23] (Osborn, Whelan and Ashley JJA).
Circumstances of the offending
On Thursday 28 October 2021, Nathan Shuttleworth, his partner Maddison McCann and their two children (aged 7 and 3) were at their home in Pakenham. Also present in the house was Bradley Granato, his two young children (aged 6 and 3), and another child who was being looked after.
At about 11.45 pm, CCTV from the house depicted a dark-coloured Mazda CX-9 arrive outside the house and park on the street. At the time, Mr Shuttleworth and Ms McCann were in the master bedroom at the front of the house watching television; Mr Granato was asleep on the couch in the living area; and the children were asleep in different bedrooms, located at the rear of the house.
The applicant, George and Ibsa got out of the vehicle and approached Mr Shuttleworth’s Ford Ranger which was parked on the nature strip in front of the house. They returned to the Mazda and then approached the front door of the house. On approaching the house, Ibsa used a silver baseball bat to turn the camera positioned at the front door away.
Ms McCann and Mr Shuttleworth heard male voices outside their bedroom window. They attempted to check their CCTV footage using a mobile phone but could not connect to the cameras. Ms McCann peered outside through the blinds and observed a tall skinny male (George). George used a torch to smash the glass panel, causing fragments to hit Ms McCann in the face. She yelled out, ‘I’m calling the cops’, to which George replied ‘I don’t give a fuck’.
Mr Granato approached the front door and said, ‘There’s kids here’. Again, George replied, ‘I don’t give a fuck’. George put his hand through the broken window and unlocked the front door. The applicant, George and Ibsa entered the house. Bizimungu remained in the Mazda. Mr Shuttleworth was confronted by one offender in the bedroom and tasered to his neck. Ms McCann ran to the bedrooms where the children were to check on them. She saw Mr Granato lying on his back trying to defend himself, saying ‘my kids bro, I have kids here’ — to which one of the offenders replied, ‘I don’t care’.
George exited the house through the back and unsuccessfully attempted to open the door of a locked Holden Commodore before returning inside. The applicant and Ibsa also exited the house through the back and entered the garage. They returned inside with George. CCTV footage then depicts the applicant running out the front door and getting into the Ford Ranger using Mr Shuttleworth’s keys. Bizimungu approached the Ford Ranger, then ran towards the house. The applicant remained with the vehicles. George, Ibsa and Bizimungu returned to the Mazda. Bizimungu was carrying a tarpaulin bag, subsequently found to contain cannabis. Ultimately, all four offenders got into the Mazda and drove away.
Police arrived at the premises in time to see the Mazda driving away. They followed it until it was abandoned by the offenders with its engine still running. Inside the Mazda, police found three mobile phones, a metal baseball bat, a wallet in the name of Bizimungu, and personal cards belonging to Mr Shuttleworth. Near the vehicle, they also found the tarpaulin bag containing the cannabis. At 12.25 am, police located and arrested Ibsa in grassland near the Mazda. About 15 minutes later, police located the applicant and George. They surrendered and were subsequently arrested. Approximately an hour later, Bizimungu was located and arrested.
All four offenders made no admissions to being involved in the incident at the Pakenham address. Fingerprints were taken from the external rear passenger door of the Mazda and were identified as belonging to the applicant. There was a contested committal heard over two days in July 2022. On 15 May 2023, the applicant and his co-offenders entered pleas of guilty and were formally arraigned.
The applicant and his co-offenders
The applicant was born in 1998 in Kenya. His father and other relatives were killed during the South Sudan war, and his early childhood was marred by other extreme violence. When he was 11, his mother and three siblings migrated to Australia. At the time of the offending, he was 23, and at the time of sentencing he was 25. He has what the judge described as a ‘relevant and not insignificant prior criminal history, including priors for aggravated burglary, theft and dishonest offences, and contraventions of youth supervision orders and bail conditions’.[6]
[6]DPP v Deng [2023] VCC 1514, [56] (‘Reasons’).
Ibsa was born in June 1999 in Ethiopia, before moving to Kenya. While he remembers very little about his childhood, he knows that he was exposed to war and lost family members. At the age of five, he and his family arrived in Australia as refugees. At the time of the offending, he was 22, and at the time of sentencing he was 24. He has no prior convictions.
George was born in Melbourne in February 2002. His parents migrated to Australia from Egypt in the early 1990s. He had a stable upbringing in Melbourne. At the time of the offending, he was 19, and at the time of sentencing he was 21. Like Ibsa, George has no prior convictions.
Bizimungu was born in Tanzania in August 1999. He spent his early years in refugee camps in Malawi, where he was exposed to physical violence. At the age of nine, he and his family migrated to Australia. At the time of the offending, he was 22, and at the time of sentencing he was 24. He has what the judge described as a ‘relevant and not insignificant prior criminal history, including seven priors for aggravated burglary; theft and dishonestly offences; and contraventions of bail conditions’.[7]
[7]Ibid [86].
Sentencing reasons
The judge said that the aggravated burglary committed by the applicant and his co-offenders was a serious example of a serious offence.[8] As the judge put it:
This was clearly a planned attack, with three of you entering the home knowing or being reckless to the fact that there were people inside. Further, once in the home, you were told by two of the adult victims that there were children in the house, which had no effect on your determination. While you, Eric Bizimungu, did not enter the home or have knowledge of the weapons, you nonetheless played an active role supporting the others and carrying away items taken.[9]
[8]Ibid [48], [51].
[9]Ibid [51].
Next, the judge referred to the personal circumstances of the applicant and his co-offenders in some detail.[10] In the course of dealing with the applicant’s personal circumstances, his Honour referred to three very supportive references tendered on the applicant’s behalf; and the report of a forensic psychologist, Naomi Cameron, which set out matters of history, referred to a diagnosis of complex post-traumatic stress disorder, referred to the applicant’s consumption of alcohol, cannabis and Xanax, and categorised the applicant as a ‘moderate risk of re-offending’.[11]
[10]Ibid [54]–[89].
[11]Ibid [63].
The judge said that, while each of the offenders conducted a contested committal hearing, their pleas had saved the court the time and expense of a trial and demonstrated their acceptance of responsibility. He said that the pleas also carried additional weight as they were entered in circumstances where the effect of the pandemic still had an impact on the criminal justice system.[12]
[12]Ibid [90].
In relation to all four offenders, the judge said that their youthfulness was also a relevant consideration. His Honour accepted that rehabilitation had ‘application in relation to each of [the offenders] to varying degrees’.[13] The judge said that he was required to ‘weigh those considerations with the seriousness of the offending’,[14] before referring to Azzopardi v The Queen,[15] where Redlich JA (with whom Coghlan and Macaulay AJJA agreed) said:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[16]
[13]Ibid [92].
[14]Ibid.
[15](2011) 35 VR 43 (‘Azzopardi’).
[16]Ibid 57 [44].
The judge said that general and specific deterrence, as well as denunciation, ‘must carry weight in the sentencing discretion, taking into account your various personal circumstances’.[17] He then noted that the applicant and Bizimungu both had extensive criminal histories, observing that this would be the applicant’s fifth conviction for aggravated burglary, and Bizimungu’s eighth. He said that specific deterrence and protection of the community ‘must carry considerable weight in the sentencing discretion in relation to each of [them]’.[18] His Honour then noted that Ibsa and George had no prior criminal history.
[17]Reasons, [94].
[18]Ibid.
The judge said that while the prospects of rehabilitation varied significantly between the four offenders, nevertheless, youth remained a relevant consideration which he took into account in relation to each of them.[19]
[19]Ibid.
In relation to the applicant, Ibsa and Bizimungu, the judge said that he took into account the fact that they had each experienced significant trauma and other disadvantage in their lives from a very young age. The judge said he accepted that the principles articulated in Bugmy v The Queen[20] should be given weight in the sentencing of each of them. His Honour cited Bugmy for the proposition that the effects of the applicant’s, Ibsa’s and Bizimungu’s deprived backgrounds do not diminish over time and should be given full weight in the determination of an appropriate sentence for each of them.[21]
[20](2013) 249 CLR 571 (‘Bugmy’).
[21]Reasons, [95].
The judge then referred to this Court’s decision in R v Verdins.[22] In relation to the applicant, he accepted that Verdins principle five (the principle that impaired mental functioning is relevant to sentencing as it could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health) had ‘some limited application’.[23] He said, however, that the psychological evidence was not sufficiently cogent to support the application of Verdins principle 6 (the principle that impaired mental functioning is relevant to sentencing if there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health) in relation to the applicant.[24]
[22](2007) 16 VR 269 (‘Verdins’).
[23]Reasons, [96].
[24]Ibid.
Next, the judge turned to the prospects of rehabilitation for each of the offenders. In his Honour’s view, the prospects of rehabilitation for the applicant and Bizimungu ‘remain guarded’; they both having extensive criminal histories and limited insight into their offending.[25] In relation to Ibsa, the judge said that he accepted that Ibsa’s conduct was ‘an aberration’, and that his prospects of rehabilitation were very good.[26] In relation to George, the judge noted that George had no prior criminal history; enjoyed the ongoing strong support of his family; and, since the offending, had gained full-time employment as an apprentice motor mechanic, and was now in his second year of training. The judge said that, as with Ibsa, he was of the view that the offending was ‘aberrant behaviour’ and that George’s prospects of rehabilitation were very good.[27]
[25]Ibid [98], [101].
[26]Ibid [99].
[27]Ibid [100].
Finally, in relation to Bizimungu, the judge noted that he had been in custody for over 500 days, of which only 407 days were available as pre-sentence detention. The judge said that he took this additional period of time into account in applying the principle of totality in Bizimungu’s case.[28]
[28]Ibid [104].
Applicant’s contentions
Under proposed ground 1, the applicant contended that the sentence on charge 1 is manifestly too long, given:
•his traumatic and dysfunctional upbringing, enlivening the principles in Bugmy;
•his relative youth and the relevance of the principles in Azzopardi;
•the applicability of Verdins principles 5 and 6;
•his prospects for rehabilitation;
•the need to protect the community by facilitating the applicant’s prospects for rehabilitation through the imposition of a CCO;
•the character references tendered in support of the applicant on the plea;
•the fact that the sentence had to be considered on the footing that the applicant would serve every day of the head sentence;
•the uncertainty experienced by the applicant as to his future prior to sentencing; and
•the lack of actual violence on the part of the applicant in the offending (albeit that the offending to which he was a party involved significant violence).
While the applicant noted that the judge did not accept that Verdins principle 6 was engaged, he submitted that the evidence disclosed that there was a serious risk of imprisonment having a significant adverse effect on the applicant’s mental health, which consisted of moderate depressive symptoms and complex PTSD.
Under proposed ground 2, the applicant submitted that there was little to distinguish the roles of the four accused in the offending; and that the differences in circumstances between the applicant on the one hand, and Ibsa and George on the other hand, were not so marked or weighty as to justify the applicant being sentenced to a term of 4 years and 4 months, and Ibsa and George being sentenced to time served (118 days in Ibsa’s case, and 102 days in George’s case) and a 3 year CCO.
While the applicant conceded that his prior convictions were ‘serious’ and ‘similar’, he submitted that ‘some distillation for context is necessary’. As he put it:
The criminal history mostly records a spate of offending committed before, but dealt with on either 15 February or 16 May 2016, at least seven years prior to his sentence on the current matters as a 25 year old (that is, offending committed as a teenager). The two most recent appearances were on 28 November 2017 and 15 March 2019, at least four years prior to sentence on the current matter. …
Balanced against that historical relevance, the character references tendered on the applicant’s behalf spoke of a kind and generous man, obviously grappling with responsibility and maturity.
Proposed ground 1: manifest excess
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[29] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[30]
[29]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[30]Ibid.
The judge was correct when he characterised the aggravated burglary committed by the applicant as a serious example of a serious offence. The applicant was part of a group; the offending occurred late at night; the offenders were armed; they ignored the victims’ protestations before forcing entry; and, once inside, they confronted the occupants physically and violently.
Moreover, the applicant has an appalling criminal history. As the judge said, this was his fifth aggravated burglary for which he has been sentenced, as well as previously having been sentenced for other serious offences, including armed robberies, attempted armed robberies and multiple offences containing elements of violence and/or dishonesty.
In all of the circumstances, but for the mitigating matters relied upon by the applicant, one might have expected a sentence of significantly longer than 4 years and 4 months on the charge of aggravated burglary. Indeed, the sentence imposed by the judge can only be explained by the existence of the various matters in mitigation relied upon by the applicant on the plea and in this Court.
For completeness, we should say that we see no error in the judge’s conclusion that Verdins principle 6 had no application in this case. But even if the judge had been bound to find that that principle had some application, the fact of its existence (together with the other matters in mitigation to which we have referred) could not justify this Court in concluding that the sentence imposed on charge 1 was wholly outside the range of sentencing options available to the judge.
Proposed ground 1 is devoid of merit.
Proposed ground 2: parity
The principles governing parity are well known. They were conveniently summarised by this Court in Anthony v The Queen,[31] as follows:
As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[32]
[31][2016] VSCA 22.
[32]Ibid [12]. The Court referred to Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]–[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]–[25]; Collins v The Queen [2015] VSCA 106, [23]. See also Marchei v The Queen [2021] VSCA 58, [49].
There was a critical distinction between the positions of the applicant and Bizimungu on the one hand, and Ibsa and George on the other hand. The applicant and Bizimungu had appalling criminal histories; whereas, Ibsa and George had no prior convictions. The applicant’s and Bizimungu’s prospects for rehabilitation were guarded; whereas, Ibsa’s and George’s were very good. Specific deterrence loomed large in the sentencing of the applicant; whereas it had little (if any) relevance in the sentencing of Ibsa and George.
In our view, these differences well justified his Honour in imposing the different sentences in this case. More specifically, we are not persuaded that it was not reasonably open for the judge to differentiate in the way he did when imposing sentence on the applicant. To the contrary, we think that, for the reasons given by his Honour, he was well justified in imposing the sentences about which the applicant’s parity complaint is now made.
Proposed ground 2 is devoid of merit.
Conclusion
For the reasons given above the applicant’s proposed appeal is without merit. In the circumstances, it would be futile to grant him the extension of time he seeks. Accordingly, the applicant’s application for an extension of time to file and serve an application for leave to appeal against sentence will be refused.
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