Director of Public Prosecutions v Chounlamountry
[2016] VCC 1967
•14 December 2016
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL JURISDICTIONCR-15-00816
Ind No: E13751507.1
DIRECTOR OF PUBLIC PROSECUTIONS v Vatthana CHOUNLAMOUNTRY ---
JUDGE: HIS HONOUR JUDGE TINNEY WHERE HELD: Melbourne DATE OF HEARING: 7 December 2016 DATE OF SENTENCE: 14 December 2016 CASE MAY BE CITED AS: DPP v Chounlamountry MEDIUM NEUTRAL CITATION: [2016] VCC 1967 REASONS FOR SENTENCE
---Catchwords: : RCSI, criminal damage
---
APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Ms S. Naimo Office of Public Prosecutions For the Accused Mr D. Wraith Taits Lawyers HIS HONOUR:
1 Vatthana Chounlamountry, you have pleaded guilty to two charges. There is one charge of recklessly causing serious injury and one charge of criminal damage. Charge 1 is punishable by a 15 year maximum term of imprisonment and Charge 2 carries a ten year maximum term. I strike out the related summary assault with a weapon charge as that is incorporated by the recklessly causing serious injury.
2 You were born on 15 March 1984 and are 32 years of age. You have a relatively lengthy criminal history and you are, in fact, serving a substantial prison term for the crime of murder, that is murder under s.3A of the Crimes Act. That sentence was imposed by Justice (Jane) Dixon in the Supreme Court in August of this year for a crime that was committed quite shortly after the crimes I am dealing with.
3 The details of your offending are set out in Exhibit A, which is the written summary of prosecution opening and that is dated 6 December of this year. Your counsel, Mr Wraith, told me that this was an agreed statement of facts and so I will just incorporate that summary into these reasons for sentence.
4 In those circumstances, I really see no need at all to fully restate the facts of this case. That summary sets out the sentencing facts and I will not go beyond them. Your offending is obviously serious as your counsel correctly concedes.
5 Stated very briefly, on 17 April 2014, you attended upon a past associate’s workplace and waited for that man to return from his days' work. When he returned, you were then pleading for a job and he could not assist you. You were speaking of your financial need. You were refusing to leave the factory and were presenting as something of a nuisance at the scene and he pressed you to go, which ultimately you did. You were ushered out and once outside the factory, you then continued to move back towards the factory. Your victim pushed you with both hands and told you to go home, he was frustrated by this point and at one point, when you continued to move back towards the factory, he put his arm around you to, again, try to usher you away again from his workplace. It was at that point that without any provocation or excuse at all, you have stabbed that man to the left upper abdomen with a knife and you then chased after that man at the scene, holding out the knife and then stabbing at the tyres of a car that he had actually escaped to; hence the criminal damage charge. It was a quite incredible event. The summary spells out the injuries, it was serious stuff and hardly surprising, given the location of the stab wound. This man required surgery following the exploratory laparotomy that had been performed and undoubtedly, he would be left with scarring as the photos make very plain.
6You were arrested by the police on 10 May in relation to the murder committed by you earlier in May and then you were interviewed in relation to this allegation. You admitted being at the scene but raised self-defence, a claim you persisted with for a significant period of time. A contested committal was conducted in May of last year, 2015, and your victim was cross examined along those lines. You pleaded not guilty and were committed for trial. The first trial date was November of last year, then April of this year and it was listed, yet again, for trial in November 2016. The matter settled in September of this year and you were arraigned and pleaded guilty in early October 2016. I do accept that the trial adjournments arose as a result of the appropriate focus being placed on the then outstanding murder trial. That trial concluded on 23 September 2015 and you were sentenced on 26August of this year.
Victim impact
7There is no victim impact statement in this case. Your victim has, for whatever reason, chosen not to make one but I have material before me as to the nature of the injuries; they were not slight. I have the photographs depicting the scarring, presumably from the exploratory laparotomy. I am not able to speculate about any long term physical impact here, over and above the obvious fact of there being scarring. However, it was obviously a frightening event; you stabbed him, you stabbed him in the abdomen, you have caused him pain and significant inconvenience. He was, after all, taken to hospital and was admitted for a number of days and I am confident he will never forget this event.
8Undoubtedly there has been impact and I take that into account.
Submissions in mitigation
9Mr Wraith, who appeared for you on the plea, raised a number of matters in mitigation. It was a very brief plea and I am not being critical of him for that, he raised what he had to raise and his submissions were, therefore, quite brief as well. He conceded the seriousness of the offending and the need for some cumulation of sentence upon your existing sentence and the need to fix a new single non-parole period. He asked that I take into account your guilty plea, the remorse implied by such a plea and most significantly, the totality of your custodial predicament. He said that you are subject to a very long sentence already and you had at least some prosects of rehabilitation, that you hoped to fit back into the family that you have left behind. He argued that the offending was not premeditated.
Prosecution
10Ms Ellis, on behalf of the Director of Public Prosecutions of this State had, at one point, argued that the court treat you as a serious violent offender. Your counsel, Mr Wraith, conceded that the submission was correct and that you did fall to be sentenced as a serious violent offender. I was, therefore, in a minority of one on this point as I disagreed with each member of counsel. My minority position then became the unanimous position soon enough as I took counsel to the legislation and both counsel then agreed that the proper construction of the serious offender provisions did not trigger these provisions in this case. Though murder, undoubtedly, is a serious violent offence, recklessly causing serious injury is not a relevant offence. That is, it is not a serious violent offence so no occasion arises for the operation of the serious offender provisions. Ms Ellis made some submissions as to the seriousness of the offence, in particular, the recklessly causing serious injury and the need for specific and general deterrence and denunciation. Those matters were in no way contentious.
Background
11I turn to your background and I do so briefly. I just have no reason to doubt the personal background that has been placed before me by your counsel. It was contained also in the report of Dr Barth dated of 10 December 2015 and it is also dealt with in detail in the sentencing reasons of Justice (Jane) Dixon, when she sentenced you. I see no need to detail it again, other than to say that I accept your counsel’s submissions as to that background. It was an unstable and disrupted one, with parental separation and it would seem, a sense of abandonment and rejection. You did not excel at school, you were mixing with negative influences from early adolescence and you came under police attention at a quite young age. You have, as Jane Dixon J described, a significant criminal history over many years. Drugs have obviously been a major issue for you over many years. Your counsel pointed to the use of ice on the day of the offence, though was not suggesting it had any mitigatory weight. It was the context and I must say that there was an oddness to your conduct on the day in the lead up to the stabbing. At one point, I think, you were lying down on the floor and at an earlier point, you had been coming out of the bathroom with a toilet brush. However, your use of ice is not mitigatory, nor though will I treat it as an aggravating feature. There is a long road ahead for you but as your counsel observes, you are removed from society already for a very significant period of time and it is hoped that there will be, by that process, isolation from drugs and presumably from drug peers and hence, a process of rehabilitation undertaken in the years ahead. There are some encouraging signs as described by Dixon J and I accept that.
Psychological material
12I have mentioned already, the report of the psychologist Dr Barth and I have indicated, the report I had was dated December 2015 and hence, was the same report that had been placed before Dixon J. It follows that it was prepared in relation to the murder matter and not in relation to these crimes that I have to deal with. Dixon J did not pay any great regard to principles from the case of Verdins. Your counsel, in the plea before me, made plain that he was not suggesting that any of the principles from that case had any application here at all. Indeed, he specifically disavowed that case and correctly so, in my view. But the report is still of value as identifying matters of diagnosis, matters of your background and your particular issues as well as comments from that author as to your expressions of willingness to change as set out at paragraph 46, to which I was taken specifically by Mr Wraith. Anyway, I take into account that report and the matters argued by your counsel. I take into account also, the letter from Dr Mercuri, which is marked as Exhibit 3.
Guilty Plea
13You have pleaded guilty and though it was obviously not an early plea, it is still of some worth and still must have a utilitarian value. Witnesses have been spared the experience of coming, at least, to this court. The community has been saved the time and the cost and effort of a contested hearing in this court. You have ultimately taken legal responsibility for your offending and in that way, you have facilitated the course of justice and so I will impose a lesser sentence because of those matters. You just do not get the same level of discount as would have been applied, had you pleaded guilty at a much earlier point. That is obvious enough; it was not an early plea.
14You made some admissions to the police and I take those into account but I do not judge that you provided a complete account by any means.
Remorse
15Your counsel was not suggesting that I could find any remorse at all, independent of the fact of your guilty plea. Given the interview and the chronology of the hearing, including the cross-examination of the complainant at the committal, I am sure he is correct in making that submission. But you have pleaded guilty and a guilty plea is usually indicative of some remorse. I am prepared to accept that the plea implies some remorse but there is no suggestion of any significant remorse in this case.
Rehabilitation
16I turn to your prospects of rehabilitation. Your counsel, unlike many, made some realistic submissions in that regard. He was not inflating your prospects. He suggested that you had at least some prospects of rehabilitation in a setting where you still had family on the outside of prison and the hope to continue contact and ultimately to join them in many years from now. They will not be children when you join them. You are going to be held in prison for very many years and he submitted that the passage of time and the suggestions of there being some desire to change your life may give you some prospects in the distant future upon your release. Justice Dixon reached a view that you are still young enough to change and I accept that is so and there are some encouraging signs. You have done some programs whilst in custody. Mr Wraith was relying upon some guarded optimism in the report of Dr Barth as well as the letter from Dr Mercuri. One the other hand, of course, you are no teenager and have a lengthy criminal history. You have committed some serious crimes in the past so it is hard to be overly optimistic or upbeat in this respect. But I am prepared to accept your counsel’s submissions that you have at least some prospects of rehabilitation.
Current sentencing practice and Offence gravity
17I take into account as I must, current sentencing practices and I have considered the Sentencing Advisory Council’s Snapshot, No.188 of 2016, to which I have been referred; that relates to the recklessly causing serious injury. The median sentence of imprisonment where a person was imprisoned for this crime was two and a half years imprisonment, meaning half get more, half get less. The most common sentence of imprisonment where prison was selected for this offence was between two and three years and the average sentence for this crime in the years 2014/2015 was two years' and 9 months' imprisonment. However a pretty decent proportion of people received sentences of between three to four years and a not insignificant group received sentences of between four and five years and some did worse.
18I have looked at a number of cases, including the case of Winch 2010 VSCA 141. That is a Court of Appeal decision. Now, that case related to recklessly causing serious injury produced by glassing and, of course, that is not what I am dealing with here but some of the observations as to the seriousness of the crime of recklessly causing serious injury are relevant.
19The Court of Appeal in that case, as well as in later cases, has spelt out the essential seriousness of the offence by examining the required mental element. It requires the foresight of the probability of causing serious injury. The assessment then, of the seriousness of an instance of recklessly causing serious injury involves, amongst other things, a consideration of the degree of probability that a serious injury will result and the degree of seriousness of the injury foreseen. The seriousness of the actual injury caused is also obviously of importance.
20Bearing in mind, in considering all these matters, that you do not fall to be sentenced as intending to cause serious injury. Well, you were using a weapon; it was a knife. It was thrust into a man’s abdomen and, of course, it had serious ramifications. How could it not? It resulted in surgery and scarring. It is hardly surprising, given the mechanism so this is not one of those cases where the actual serious injuries were as a result of some calamitous intervening event such as a person being struck and then falling to the ground and striking their head.
21I have also considered the Judicial College of Victoria sentencing manual, which has an overview of sentences imposed for this crime. Current sentencing practices is one of a large range of matters that I must pay regard to. That is because consistency of sentencing is a fundamental objective of the criminal law. But there is never one correct or right sentence.
22The statistical material that I have referred to, well, it has clear limitations, as the Court of Appeal has made plain often enough in their decisions. Nor can the outcome in other cases, for instance, the case of Tran, to which I was referred by the prosecutor, be decisive as to the actual sentence to be imposed in this case. There were many differences in terms of conduct and background. Tran for instance was a relatively youthful offender. On the other side of the equation, his physical attack was arguably worse with a number of blows with a weapon and more serious injuries. In any event, other sentencing decisions are not precedents. Every case is very different and so too, every offender and I have to pass an appropriate sentence in your case and a significant aspect in your case relates to totality of sentence.
23Your counsel was suggesting that there was no premeditation. I accept that you did not go to the factory intending to assault so I do not find any premeditation in that sense. You were acting, as I have said already, quite oddly at the factory. However, inescapably, at one point you have pulled out the knife at the scene so this was not some reflex act with something already to hand. You have pulled it out and worse still, you have used it to stab your victim to a very critical part of the body. It was massively dangerous conduct. It was unprovoked and it was totally unexpected and totally uncalled for.
24You foresaw the probability of serious injury being caused. This was not a fight. This was a startling attack upon another person, a person who was totally unprepared for the nature of the strike with the knife. Now, it was, of course, not a sustained attack. It did not need to be, there was the single strike with the knife. You have then chased him and happily, he has escaped.
25As to the injuries, well they are certainly not low-level serious injuries. They are sufficient to amply meet the ‘new’ definition of serious injury as contained with the Crimes Act. There had been exploratory surgery and then surgery to correct the issues caused by the knife wound. Having said all that though, it is clear enough that they are a long way removed from the sort of catastrophic injuries that are sometimes seen in the courts.
26I have to pay regard to the nature and the gravity of the offence before the court and all this talk of level of offence seriousness can be easily misunderstood. This was, on any view of it, very serious offending by you. Your offending represents, in my judgment, a serious example of a serious crime by a mature man with a relevant and quite lengthy criminal history, so the need for specific deterrence and to a lesser extent, community protection, is plain enough.
Sentencing considerations
27I have taken into account, all of the submissions made by your counsel and the exhibits that he has tendered. There are a variety of matters which I have to take into account, including of course, the maximum penalties. I have already mentioned that I have to pay regard to current sentencing practices and I do and I must pay regard to the impact of your crimes. But there are a host of other matters that also a court is required to reflect upon.
28Your prospects of rehabilitation, for instance, I am not free to simply ignore them and I do not. I do not rate them particularly highly but I do accept that you have some prospects of positive change in the future.
29You must be punished for your crimes, and I have to do that justly and proportionately and I must denounce your conduct and I do. It was quite extraordinary behaviour. It was an unprovoked stabbing on a public street and one causing serious injury.
30Community protection is clearly of some weight though in this regard, you are already out of circulation for a very lengthy period of time so I do not see the need to greatly emphasise that purpose of sentencing. I can tell you, I would give it much greater weight but for the other sentence which protects the community already for a very lengthy period. The need for specific deterrence though is very clear; you must be deterred. You must be dissuaded from committing a crime such as this ever again and that is still the position, despite the lengthy sentence you are presently exposed to, courtesy of Dixon J.
31On two occasions, you have used knives to stab another human being in the space of about three or four weeks. I must also seek to deter others who might be minded to commit this type of serious offence. This is principle of general deterrence as us lawyers often refer to it. Knives are, regrettably, a common weapon of choice. They just should not be. They should not be carried. They should not be used. The use of a knife is incredibly dangerous. Use of them in this type of violent and unprovoked attack must be strongly denounced by the courts. You cannot judge to a nicety the level of injury that you are going to cause. It can end tragically, as you well know, from the outcome of the stabbing only a few weeks later at your hand. The community and the courts are heartily sick of this style of violence. General deterrence is a very sizeable factor in this case.
32Your counsel argued that strong regard should be had to the principle of totality of sentence and I do pay strong regard to that principle. I cannot ignore your present custodial exposure to what is a very lengthy sentence or, for that matter, the fact that you have been in custody for a significant period already. Nor, though, can I ignore or devalue what is before me which is undoubtedly a serious example of the crime of recklessly causing serious injury. I recognise the principle of totality by the level of concurrency I order and by moderating the extent of increase in selecting the new single non-parole period that I do select. It is inevitable, that had one judge been dealing with these crimes as well as the murder at the one time, that there must have been a greater custodial penalty imposed. There was, after all, no connection between the crimes. They are quite separate victims and quite separate and serious crimes, so no sensible submission could have been addressed in support of total concurrency and indeed, your counsel concedes there must be some cumulation and increase in sentence and the non-parole period and, of course, that is correct.
Disposal Order
33There are a couple of ancillary orders, Mr Chounlamountry, and I make those. The first of those is a disposal order that is applied for under the provisions of s.78 of the Confiscation Act. It is not opposed. You have committed the offence of recklessly causing serious injury. I am satisfied that the property referred to in the schedule is covered by the provisions of the Confiscation Act and is appropriate to be forfeited and disposed of, so pursuant s.78, I direct forfeiture to the State of the property referred to in the schedule. I direct that it be held in the manner contemplated by the order until it is destroyed. I have signed that order.
464 ZF
34The second order is an application for a forensic sample. There is no issue taken with that order either. What I am dealing with here then is the taking of a scaping from your mouth. I am not authorising a blood sample, it will be a mouth swab that will be taken. It is not an invasive thing for you and it will be done by the authorities but I am satisfied that it is appropriate to make the order. I have considered the circumstances of the offences, I am satisfied that the making of the order is justified, owing to the seriousness of the offending, your prior convictions are such to warrant the making of the order, and the order is not opposed and that I deem it and judge it to be in the public interest, so the authorities will ask you to run a swab or may even rub it around your mouth. It is not an invasive procedure, they can use reasonable force to enable that procedure to be conducted so they can obtain a sample of sufficient standard to be placed on the database. They should not need to use reasonable force. No doubt, if they encountered difficulties, they would be back before me, applying for a blood sample. I have not yet, at this point, authorised a blood sample but no doubt, I would.
Sentence
35Stand up please.
36On the charge of recklessly causing serious injury, I convict and sentence you to five and half years' imprisonment. That is the base sentence.
37On Charge 2, for criminal damage, I convict and sentence you to eight months' imprisonment and that sentence will be served concurrently with the sentence imposed on the recklessly causing serious injury.
38What that produces is a total effective sentence on this indictment, that is Indictment E13751507.1 of five and half years' imprisonment. That much is straightforward.
Cumulation
39I direct then, that two years of the sentence imposed by me today is to be served cumulatively, that is on top of the sentence you are presently undergoing. All right, so I am adding two years.
New single NPP Section 14
40I then have to fix a new single non-parole period pursuant to s.14 of the Sentencing Act and that supersedes the previous non-parole period fixed by Dixon J. I have to fix this new single non-parole period in light of the global total effective sentence as between Dixon J’s sentence and my orders for cumulation and I order that you serve a period of 15 years before becoming eligible for release on parole. But I want to make plain to you, though, that you are getting the benefit of the pre-sentence detention. I am not declaring the pre-sentence detention but you are getting the benefit of that pre-sentence detention declaration that she made back in August of this year, all right? Just so there is no doubt about this and I have had issues emerge with this form of order in the past where there was a new single non-parole period.
Commencement date of new single non parole period
41That new non-parole period is effective from 26 August 2016, all right, which is the date of Jane Dixon J’s sentence, so it commences on that date. Not commencing today. My intention then, just so I can be very explicit, so if there are any issues and any problems with the way it is being interpreted, that you could come back to me but my intention then is to add two years to your head sentence and one and half years to your non-parole period. What that leads to is a total effective custodial liability of 19 and a half years with a non-parole period of 15 years but going back to 26 August 2016.
42I had contemplated whether it was preferable to commence the new single non-parole period from today’s date and that would have required some alteration of the figure. I have done that in the past and in doing so, what I have done is I have followed the suggestions of a very experienced Judge in this State, Brooking JA in Rich and I then have had the order hopelessly misinterpreted by the authorities on a number of occasions and it has caused great angst for the prisoner in those circumstances. What is critical is that there be certainty as to the commencement date and I have provided that in my reasons. I have specified the commencement date and my intended effect. There is no need for me to make any s.18 declaration as to your pre-sentence detention as that previous declaration of Dixon J remains effective.
43I strike out the related summary assault with a weapon charge.
6AAA
44 Finally, had you been found guilty following a contested hearing before a jury, I would have sentenced you to a term of seven years' imprisonment. I would have cumulated three and a half years of that sentence upon your existing sentence, leading to a head sentence of 21 years and I would have fixed a new single non-parole period of 16 and a half years. That statement is to be noted in the records of the court, pursuant to the provisions of s.6AAA.
45 Ms Naimo, Mr Wraith, do you understand the orders that I have made and the intended effect of them?
46 COUNSEL: Yes.
47 MS NAIMO: Your Honour, can I just confirm you intention to add, was it two years or two and a half years to the head sentence?
48 HIS HONOUR: It is two years.
49 MS NAIMO: Two years and 18 months to the non-parole period.
50 HIS HONOUR: Correct, yes.
51 MS NAIMO: Thank you.
52 HIS HONOUR: It is my intention - I hope I did not make a mistake along there but my intention then is to add, I said, two years to your head sentence and one and half years to your non-parole period, leading to - when I looked at the previous sentence, it was 17 and half with 13 and half, was it not?
53 COUNSEL: Yes.
54 HIS HONOUR: It is a total liability of 19 and half years with a non-parole period of 15 years.
55 MS NAIMO: Yes, that is okay, Your Honour, I do not - I just misheard. Thank you.
56 HIS HONOUR: No, that is all right. As I say, there is discussion in that case of Rich and Brooking JA took the view that it is better that there be a uniform approach and the uniform approach would be commencing the new single non-parole period from the date that it is actually imposed but I have done that in the past more than once and it has created just chaos, I have got to tell you, because one does not make a s.18 declaration and I have had prisoners come back before me, who have served significant periods of time under the previous non-parole period but then the authorities have not cited any sort of PSD, so that is why I have done what I have done. To be very explicit, I am back dating the new single non-parole period to run, effectively, from
6 August of 2016 and obviously, it has, at that point then, the declaration that was then made by Dixon J as to the PSD to that point so essentially, I hope it is not going to be misinterpreted but I have done my best to avoid that and I will also put a special entry on the court record to try and avoid it being misinterpreted. Anyway, as I say, if there are any issues, it can always be brought back before me. All right, any other matters at all?
57 MS NAIMO: No, Your Honour, thank you.
58 HIS HONOUR: Mr Wraith, are you going to down to see your client downstairs?
59 MR WRAITH: Yes, I am and I would be grateful if I could have a copy of Your Honour's sentencing.
60 HIS HONOUR: Look, not at the moment, you cannot but I will revise it when I get it, Mr Wraith. It is just not revised at the moment and I have got a bad habit of running free of my script, which I have done yet again but you understand the bones of it in terms of the figures and the practical effect of it but, no doubt, I can provide a copy to your instructor once I have got it back from VGRS and it is revised.
61 MR WRAITH: I am indebted.
62 HIS HONOUR: Yes, all right, thanks very much. All right, Mr Wraith is going to come down and see you downstairs, Mr Chounlamountry, so he can be removed now, thank you.
63 Mr Wraith, I do not have the reasons revised, obviously but I have just signed the order and we can have a copy of that made for you as well, you can take it down but you will see that these computers, it is a very clunky system, it does not word things in the way I want to word them and that is one of the problems because when you are fixing a new single non-parole period and not making a s.18 declaration and I am not entitled to make one, it runs the real risk of it being misinterpreted so I have put a note to this effect, "The court was required to fix a new singe non-parole period pursuant to s.14 of the Sentencing Act. There is no need to make a s.18 declaration for pre-sentence detention." I could have said I cannot. “There is no need to make a s.18 declaration for pre-sentence detention. The declaration made by Dixon J remains effective. The effect of these orders is to add two years to the head sentence, now 19 years and six months and one year and six months to the earliest release on parole. Now, 15 years from 26 August 2016 rather than 13 and a half years.” Hopefully that will make it very clear to the authorities but you will be able to get a copy of this and take that down anyway.
64 MR WRAITH: Yes.
65 HIS HONOUR: We will see if there is anything in the reserve list. Yes, look, I will stand down then for the moment. Yes, thanks very much.
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