DPP v Fucile and Tran
[2013] VSCA 312
•11 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0152
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JACQUES TONY FUCILE | Respondent |
AND
S APCR 2013 0153
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| QUOC HAI TRAN | Respondent |
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| JUDGES | MAXWELL P, WEINBERG and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 October 2013 |
| DATE OF JUDGMENT | 11 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 312 |
| JUDGMENT APPEALED FROM | R v Tran, Levchenko and Fucile [2013] VSC 363 (Lasry J) |
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CATCHWORDS – Criminal law – Sentencing – Director’s appeal – Respondents employed as security officers at Crown Casino – Melee involving patrons – Common assault – False imprisonment – Intentionally causing injury – Lengthy trial and lack of remorse – Whether fines of $8,000 and $6,000 manifestly inadequate – Whether nothing short of imprisonment sufficient to meet needs of general deterrence – Appeal allowed – Fines increased to $16,000 and $12,000.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J C Silbert SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent Fucile | Mr O P Holdenson QC with Mr T J Walsh | Tony Hargreaves & Partners |
| For the Respondent Tran | Mr D A Dann | Tony Hargreaves & Partners |
MAXWELL P
WEINBERG JA:
The Director of Public Prosecutions has appealed against what he contends are inadequate sentences imposed upon Jacques Tony Fucile and Quoc Hai Tran arising out of their conduct, as security officers, at Crown Casino.
On 3 July 2011 an altercation took place at the Casino between the respondents and several patrons. As a result of the general fracas that arose, one man died. His death was the subject of criminal proceedings brought against others; the respondents were in no way responsible for that particular tragic event. However, by reason of the respondents’ actions, Matthew Anderson, an innocent patron, sustained significant injuries, while his partner, Olivia Ferguson, suffered considerable pain after being hurled violently to the ground. Both victims were then, while being escorted off the premises, falsely imprisoned.
Both Fucile and Tran were charged with a number of offences. For reasons that do not presently matter, they stood trial before a jury in the Trial Division of this Court. The trial itself was lengthy, and ran for 22 days. Ultimately, Fucile was convicted of having intentionally caused injury to Anderson, and also having falsely imprisoned him. Tran was convicted of having intentionally caused injury to Ferguson, assaulting her, and having falsely imprisoned her. A third security officer, Nicholas Levchenko was convicted of a single charge of having falsely imprisoned Anderson.
On 20 May 2013, Tran was sentenced as follows:
Charge on
Indictment
C1108174B.2Offence Maximum Sentence 1 Common assault [common law] 5 years [Crimes Act 1958 s 320] $3,500 fine
(with conviction)4 False Imprisonment [common law] 10 years [Crimes Act 1958 s 320] $2,500 fine
(with conviction)Charge on
Indictment
C1108174B.2Offence Maximum Sentence 5 Intentionally cause injury [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] $2,000 fine
(with conviction)Total Effective Sentence: $8000 fine (with conviction)
Fucile was sentenced as follows:
Charge on
Indictment
C1108174B.2Offence Maximum Sentence 3 Intentionally cause injury [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] $4,000 fine
(with conviction)7 False Imprisonment [common law] 10 years [Crimes Act 1958 s 320] $2,000 fine
(with conviction)Total Effective Sentence: $6000 fine (with conviction)
Levchenko was fined $2,000 (without conviction) on the charge of false imprisonment.
By notice filed on 15 August 2013, the Director appealed against each of the sentences imposed upon Fucile and Tran. He relied upon one ground only, that of manifest inadequacy. He alleged, by way of particulars, that the sentencing judge:
a) failed adequately to reflect the gravity of the offences generally, and, in particular, the injuries suffered by the victim;
b) failed sufficiently to take into account the need for the sentences to reflect general deterrence and denunciation, and, in particular, the offender’s position as the holder of a private security licence and his employment as a security officer; and
c) gave too much weight to factors going to mitigation, in particular the extra curial punishment flowing from the loss of the said licence.
In response to an enquiry made on behalf of the Court prior to the hearing, the Director clarified his position as regards the orders sought on this appeal. So far as Fucile was concerned, the Director submitted that, assuming the appeal succeeded, the only appropriate sentence would be one of immediate imprisonment, although any such sentence could be partially suspended. With regard to Tran, the Director submitted that it would be open to this Court, on resentencing, to impose a wholly suspended term of imprisonment.[1]
[1]It should be noted that the Director’s submissions before this Court differed from the position he had adopted below. There, on the plea, the Director submitted that both Fucile and Tran had to receive actual custodial terms, and that nothing short of imprisonment would meet the needs of the case.
Circumstances surrounding the offending
The following outline of the facts is taken largely from the Registrar’s neutral summary.
On 3 July 2011, Anderson, Ferguson and Anthony Dunning, went together, as a group, to the football at the MCG. Afterwards, they went to Crown Casino, arriving at about 6.00pm. They had all been drinking throughout the course of the day.
CCTV footage showed that at 10.42pm Dunning was standing alone near what is described as the ‘Velvet Bar’. Anderson and Ferguson had, at that stage, gone to the food court. Matthew Lawson, a security officer, concluded that Dunning was intoxicated. He instructed him to leave the premises. The CCTV footage makes it clear that Dunning appeared willing to leave, although he seemed somewhat unhappy about having been asked to do so.
As Dunning moved off, towards the exit, he was surrounded by at least four security officers. They included Fucile and Tran. As it happened, Tran was Fucile’s supervisor. Dunning showed no physical resistance, but there was apparently continuing debate about why it was necessary for him to leave. Other security personnel stood by, ready to be involved if required.
As the group surrounding Dunning headed towards the exit, they confronted Anderson and Ferguson. The judge observed, in his sentencing remarks, that Dunning was apparently continuing to protest his having been required to leave. Indeed, he may at one stage have told the security officers to ‘fuck off’. His Honour was in no doubt that both Anderson and Ferguson were, at that point, seeking to facilitate Dunning’s departure from the Casino. He commented that ‘Ferguson’s willingness to try and defuse the situation’ was evident from the CCTV footage. He noted that after a brief discussion between the security officers and the respondents, the entire group continued to move towards an exit.
As that happened, Ferguson turned and slapped Tran’s face. While noting that there was no obvious reason for her action, his Honour observed that something must have prompted her to act in that way.
Ferguson’s recollection of her motivation was that Tran had said something particularly offensive about Dunning. The judge observed that the CCTV footage (particularly View E from Exhibit B) showed that Tran had turned and said something very brief to perhaps either or both of two other security officers, Kris Turner and Matthew Lawson. He found that the slap appeared to have been an ‘acute’ reaction to what Tran had said. His Honour specifically rejected Turner’s evidence to the effect that Tran had said nothing to provoke Ferguson’s response, and that she had simply walked over, slapped Tran and called him ‘a fucking cunt’. His Honour noted that, immediately before Ferguson slapped Tran, she had had her back to him and was in the process of walking away, peacefully, and in company with Anderson and Dunning. While Ferguson had no justification for slapping Tran, the fact that it was a reaction to something Tran had said made his response ‘all the more surprising’.
Tran’s offending
The moment Tran was slapped, he responded by grabbing Ferguson’s left hand with his left hand, placing his right hand behind her head, and throwing her violently to the ground in what was described as a ‘spinning movement’. All of this took less than a second. Once she had hit the ground, Tran fell upon her, pinning her down using the entire weight of his body. With Turner’s assistance, Tran then placed her in what was said to be the ‘shut-down position’.[2]
[2]The ‘shut-down position’ involves taking the arms of the patron so that they are perpendicular to the body, and holding them on the ground at about the wrist and shoulder.
Ferguson’s evidence was that, while she was being held in that position, she was insulted, called names and told not to move. She believed that Tran had been one of those who had engaged in that conduct, but did not know who else was involved. The judge was of the view that the evidence did not permit a finding adverse to Tran on that issue. However, his Honour accepted Ferguson’s evidence that she was crying throughout, and, that she had twice attempted to apologise.
After about a minute, Tran and Turner forcibly lifted Ferguson to her feet. She was visibly distressed. The two men held Ferguson, momentarily, in a ‘wrist-lock hold’[3] before Tran passed her arm to Adam Hewetson, another security officer. Following a brief discussion concerning Anderson, Tran instructed Hewetson and Turner, as well as two other security officers, to escort Ferguson out of the building, accompanying them through a series of corridors. Ferguson was finally released, minutes later, at the Whiteman Street exit, which was at the opposite side of the Casino to where Anderson was ejected.
[3]A ‘wrist-lock hold’ involves gripping a person’s forearm at a right angle to their body, and parallel to the floor. The security officer’s arm is on the inside of the patron’s arm and their hand is on the outside of the patron’s hand, holding it so that the palm is facing in while the fingers are pointed upwards and slightly outwards. The position is such that even a small amount of pressure will result in pain to the wrist.
The charge of common assault relates to Tran’s having thrown Ferguson to the ground, and leapt upon her, until he handed her over to Hewetson and Turner. The charge of false imprisonment relates to his conduct in having procured Hewetson and Turner to deprive Ferguson of her liberty, against her will, by holding her in what was described as a ‘horizontal transport hold’[4] as she was escorted from the Casino. The charge of intentionally causing injury relates to Tran’s having counselled and procured Hewetson and Turner to inflict pain on Ferguson by applying pressure to her wrists while she was being escorted from the premises, in the ‘horizontal transport hold’.
[4]A ‘wrist-lock hold’, applied by an officer on each side.
Fucile’s offending
The offences committed by Fucile arose from his treatment of Ferguson’s partner, Anderson. As Ferguson was being thrown to the ground by Tran, Anderson turned towards her. He raised his arm, and appeared to take a half step in her direction before a group of security officers, including Fucile, Levchenko and Lawson, fell upon him, pushing him backwards onto the ground.
Once Anderson was on the ground, Fucile and Levchenko each grabbed hold of one of his arms. The judge found that Fucile placed his hand on Anderson’s throat while restraining him.[5] As Levchenko held Anderson’s left arm, Fucile used his right arm to gain leverage, and ‘flipped’ Anderson onto his stomach. Fucile used his entire body weight in the process of doing so. He also placed his hand against the back of Anderson’s head several times in order to maintain his balance. At one point, Fucile pulled Anderson’s left arm up and twisted it behind him. As this was happening, Anderson cried out in pain.
[5]R v Tran, Levchenko and Fucile [2013] VSC 363, [17].
Anderson was held on the ground in this fashion for more than a minute. At that point, Fucile and Levchenko, acting in accordance with the instructions of another security guard, John Zocchi, raised him to his feet and applied the ‘horizontal transport hold’. They then escorted Anderson out towards the Santé exit, away from Ferguson. His Honour observed that the CCTV footage appears to show Anderson resisting, while being forcibly removed.[6] Eventually, some three minutes or so after Anderson had been raised to his feet, Fucile and Levchenko released him. However, they did so grudgingly, and only after they had pushed him in the back, onto the pedestrian bridge.
[6]Ibid [19].
The offence of intentionally causing injury arose out of Fucile’s having pulled Anderson’s left arm up, and twisting it behind his back, and also out of Anderson having suffered a blood nose. The offence of false imprisonment arose out of Fucile’s having deprived Anderson of his liberty by holding him against his will as he was being escorted from the Casino.
The plea
Just as the trial was inordinately lengthy, so too, it can be said, were the pleas. The prosecutor submitted that the primary factor in determining the sentences to be imposed was general deterrence. He further submitted that, in respect of both respondents, ‘the only appropriate sentence’ was ‘one involving at least some period of immediate imprisonment’.
For the sake of completeness, it should be noted that, with regard to Levchenko, the prosecutor submitted that the appropriate range was anything from a Community Corrections Order to a term of imprisonment, which he conceded, might be wholly suspended.
Counsel who appeared for Fucile on the plea below submitted, somewhat boldly, that his Honour should impose a fine without conviction for his client’s offences. Counsel who appeared for Tran essentially argued for the same outcome. However, he submitted, in the alternative, that in relation to his client, a fine, with conviction, might be appropriate. He submitted, by way of further alternative, that should his Honour regard a fine as itself inadequate, some form of unpaid community work might be acceptable. Finally, and as a last resort, he submitted that if his Honour came to the view that nothing short of imprisonment was warranted, any such term should be wholly suspended.
Sentencing remarks
The sentencing judge made a series of findings regarding Fucile’s culpability.
First, with regard to the objective gravity of Fucile’s offending, his Honour noted that Anderson had gone to hospital on the day after being assaulted. It seemed that he had been told that both his nose and left elbow had been fractured. He had also been told that he had sustained torn ligaments in that elbow.
It should be understood that there had been argument, during the trial, as to whether Anderson’s nose had in fact been fractured. There had also been argument as to whether the avulsion fractures[7] to his elbow could be attributed to the melee that gave rise to the charges. His Honour indicated that he did not consider it necessary to resolve these issues. However, he specifically found that, irrespective of whether Anderson’s nose had been fractured, it had certainly sustained injury during the course of the struggle with the security officers.
[7]An avulsion fracture is a bone fracture which occurs when a fragment of bone tears away from the main mass of bone as a result of physical trauma.
His Honour also found that Anderson had his arm in a sling for about 10 days after the incident in question. Indeed, he had been off work for about five weeks. Moreover, the injuries sustained had had ongoing effects. Anderson still had difficulty, at the time of the plea, in raising objects above his head.
The judge went on to say that he was not satisfied that the jury necessarily concluded that Fucile had intended to break Anderson’s nose. He was quite satisfied, however, that they had concluded that Fucile intended to injure Anderson when he twisted his arm up behind his back.
His Honour viewed Fucile’s offending as being at the lower end of the scale for the offence of intentionally causing injury. That was because his actions were spontaneous, did not involve the use of a weapon, and did not result in injuries that were in and of themselves all that serious. In the judge’s assessment, the offence consisted of Fucile having twisted Anderson’s arm, intending to hurt him, and effectively little more.
On the other hand, his Honour noted that Anderson had been completely at Fucile’s mercy when set upon by him. He had done nothing to provoke Fucile, and was entirely innocent of any wrongdoing. All that could be said, by way of explanation for Fucile’s conduct, was that Anderson was moving in the direction of Ferguson, presumably to remonstrate with Tran, and the other security officers, who were, at that stage, holding her down. It was at that point that Fucile launched himself upon Anderson.
The judge commented upon Fucile’s role as a security officer which he described as having been to attend to the security and wellbeing of the Casino’s patrons. This, of course, included Anderson. For Fucile to have intentionally inflicted injury upon Anderson, as he had done, involved a clear abuse of Fucile’s role, and an abdication of his responsibilities.
With regard to the charge of false imprisonment, his Honour found that the gravity of Fucile’s offending should also be viewed as being at the lower end of the scale. However, the deprivation of liberty was aggravated by Fucile’s entirely unnecessary and disproportionate use of force in restraining Anderson and, furthermore, in hauling him away from Ferguson towards the opposite end of the Casino. The offending was further aggravated by Fucile not having had the grace to offer assistance to a man who was visibly injured, and clearly in pain.
His Honour found that Tran bore a greater degree of moral culpability for his act of false imprisonment than did Fucile. He noted that Fucile and Levchenko were simply following Tran’s instructions in that regard. It was Tran who ordered Anderson and Ferguson to be kept separate while they were removed from the Casino. This had the effect of extending Anderson’s loss of liberty.
The judge accepted that both Fucile and Tran were likely to have acted in the mistaken belief that they were entitled to use the ‘horizontal transport hold’ in the removal process. Both men considered that they were acting in accordance with Crown Casino’s ‘standard operating procedures’. While this may have reduced Fucile’s moral culpability to some degree, it was of little weight in the particular circumstances of this case. That was particularly so given the extent of Tran’s overreaction to the slap he had received, and the quite unnecessary use of force, by both men, during the course of the eviction process.
As regards Fucile’s personal circumstances, his Honour accepted that he appeared to have been hard-working, respectful of others, and self-reflective throughout his working life. The offending was entirely out of character.
Nonetheless, as his Honour observed, Fucile had pleaded not guilty and had shown no remorse whatever for what he had done. He had not taken responsibility for his conduct, but instead, had maintained his innocence throughout.
In these circumstances, the judge said that he had some difficulty in arriving at any clear conclusion as to Fucile’s prospects of rehabilitation. Nonetheless, his Honour was prepared to accept that, since the jury’s verdict, Fucile had reflected upon his conduct, and was unlikely to engage in behaviour of that kind again.
As regards Tran, the judge noted that, fortunately, his offences against Ferguson had not resulted in any significant injury. However, by reason of the assault, she had sustained a sore jaw, and a bruised arm. Neither injury was sufficiently serious to cause her to seek medical assistance.
Nevertheless, as a result of Tran’s actions, Ferguson had suffered significant pain. His Honour observed that while pain alone might be seen as being at the lowest level of injury criminally punishable, that did not mean that Tran’s offending was not serious.
The judge regarded Tran’s behaviour, in forcefully throwing Ferguson to the ground, and holding her there for almost a minute, as an ‘extraordinary reaction’ to what, after all, had been a mere slap, administered with only a modest degree of force. His offending was aggravated by the fact that he had been trained, as a security officer, to act in such a way as to minimise the potential for conflict, and violence. He, far more than the average member of the community, ought to have been able to manage any anger he felt in relation to what had been, at most, a modest provocation. He ought to have had sufficient self-control to react with a degree of level-headedness, and professionalism. He was, after all, accompanied by six fellow security guards, and was never in any real danger from Ferguson. The claim of self-defence, which he ran during the trial, could only be viewed as entirely specious.
With regard to the offence of false imprisonment, the judge found that Tran’s actions were unnecessary, so far as the protection of any of the security staff, or indeed, any of the Casino patrons, was concerned. Ferguson had been immobilised, and was endeavouring to apologise. She was obviously upset, and crying. She would unquestionably have obeyed any direction that she leave the premises. There was no need whatsoever to have used any force at all in order to have her depart from the Casino. She could simply have been accompanied on her way out.
Finally, with regard to the offence of intentionally causing injury, his Honour noted that the CCTV footage clearly showed Ferguson in pain at several stages during the period of nearly two minutes that it took to escort her off the premises. The Crown invited the jury to infer that Tran, in his capacity as supervisor, had indicated to Hewetson and Turner, that he wanted Ferguson to feel pain while she was being removed from the premises. The judge considered that it was clear that the jury had, indeed, drawn precisely that inference. Tran had remained in close physical proximity to Ferguson all the while that she was being physically restrained by the other security officers, and he had obviously seen that she was exhibiting signs of pain. Yet he had done nothing to alleviate her situation. It would have taken only a word from Tran for Hewetson and Turner to desist from hurting her. His silence spoke volumes. The judge found that ‘the jury reasoned that [Tran’s] failure to intervene demonstrate[d] an intention on [his] part that she suffer that pain’.[8]
[8]R v Tran, Levchenko and Fucile [2013] VSC 363, [16].
As previously indicated, the judge considered that, with regard to offence of false imprisonment, Tran’s offending was significantly more culpable than that of Fucile. It was Tran who was in charge, and Fucile basically followed his instructions.
The judge found that Tran had the same mistaken belief, as did Fucile, that those who were escorting Ferguson and Anderson from the premises were entitled to use the ‘horizontal transport hold’ in doing so. However, in his Honour’s view, that only marginally reduced Tran’s moral culpability.
Finally, his Honour observed that Tran’s background suggested that he was normally calm, mild-mannered and respectful. He had never previously been the subject of any complaint in relation to his work. He had an excellent employment record. The offending was entirely out of character.
Nonetheless, as with Fucile, Tran had pleaded not guilty, shown no remorse, and refused to take any responsibility for his conduct. He had maintained his innocence throughout. He had offered no apology to Ferguson.
In these circumstances, his Honour found, as he had with Fucile, that there was some difficulty in reaching any conclusion as to Tran’s prospects of rehabilitation. He went on to say, however, that it was ‘very likely that you now understand that there are consequences for the kind of conduct you engaged in and that you have probably had a salutary lesson’.[9]
[9]R v Tran, Levchenko and Fucile [2013] VSC 363, [26].
In sentencing both Fucile and Tran, his Honour accepted that one of the factors that made their offending serious was that they had been acting as security officers. They had wielded significant power, and were vested with important responsibility. Plainly, general deterrence had an important role to play. Those engaged in security work, whether in casinos, or any situation involving members of the public, should be made aware of the fact that abuse of power of the kind that had occurred in this case would be strongly denounced, and severely punished.
In balancing the need for general deterrence against other sentencing considerations, his Honour said that he regarded the respondents’ loss of their private security licences for a period of 10 years (as required by the relevant legislation) as a significant extra-curial punishment. He considered that this would contribute substantially to the deterrent effect, upon others, of the penalties that would be imposed. It seemed that that fact weighed heavily in his Honour’s determination of the appropriate sentence.
The judge specifically rejected the Crown’s submission, on the plea, that nothing short of a period of immediate imprisonment would be appropriate in the circumstances of this case. His Honour concluded that the imposition of substantial fines, coupled with the recording of convictions, would meet all relevant sentencing needs.
The Director’s submissions
Mr Silbert SC, who appeared on behalf of the Director, submitted that the judge’s decision to fine the respondents, rather than imprisoning them, was so clearly wrong as to have ‘shocked the public conscience’.
In support of that submission, he argued that the single most important factor to have been considered in assessing the gravity of the offending was that these crimes were committed by security officers. They must have known that their actions were unwarranted, and involved the use of disproportionate force. Accordingly, their conduct should be viewed as amounting to a serious abuse of power.
Mr Silbert drew attention to the fact that Ferguson, in particular, appeared to have been doing her best to calm the situation when Tran said something that caused her to respond by slapping him. Thereafter, he behaved in an appalling manner. Anderson had been innocent throughout. There was nothing that could justify Fucile’s conduct towards him.
Mr Silbert argued that Fucile’s offending, in relation to the charge of intentionally causing injury, had to be regarded as serious. He had both placed his hand on Anderson’s throat and then used Anderson’s right arm for leverage in order to flip him onto his stomach. In doing so, he had put his entire body weight onto Anderson. Moreover, he had several times forcefully grabbed the back of Anderson’s head in order to balance himself. He had then twisted Anderson’s left arm up behind him all the while ignoring Anderson’s cries of pain.
Mr Silbert submitted that even though Anderson’s injuries could not themselves be characterised as particularly grave, they were not insubstantial. Whether Anderson’s nose was fractured or not, the fact remained that it was, at the very least, bruised, and bled for a considerable period of time. In addition, Fucile, by his actions, caused Anderson to sustain a fracture of the elbow, extending down to the wrist. Anderson had his arm in a sling for some days and was off work for a number of weeks. Moreover, by the time the plea was heard, he still had some residual difficulty in lifting objects above his head.
Mr Silbert argued that Fucile’s offence of false imprisonment should not be viewed as other than serious. Fucile had held Anderson to the ground for about 90 seconds. Thereafter, he, together with Levchenko, had hauled Anderson to his feet, all the while gripping him in a ‘horizontal transport hold’. Fucile continued to apply that hold, quite unnecessarily, even after Anderson had been physically removed from the premises.
Mr Silbert submitted that whatever might be said in Fucile’s favour, by virtue of his personal circumstances, the fact remained that he had stood his trial, and showed no remorse. While his conduct toward Anderson might properly be characterised as being at the lower end of the scale for offences that each carried 10 years’ imprisonment, it was nonetheless brutal, callous, and unwarranted. Despite the extra-curial punishment that Fucile had suffered by reason of his having lost his private security licence, nothing short of actual imprisonment would suffice to bring home to others the seriousness with which the courts viewed such conduct.
Mr Silbert’s submissions regarding Tran were not dissimilar. Whatever it was that led Ferguson to slap him, there was no justification whatever for Tran to have responded as he did. It was not just that Tran had thrown Ferguson forcefully to the ground. Thereafter, he had pinned her down, applying the entire weight of his body to keep her down. Together with Hewetson, he had then placed her in the ‘shut-down’ position which he maintained for almost a minute and then applied the ‘wrist-lock hold’ previously described.
Mr Silbert submitted that the offence of common assault should be regarded as particularly serious. Ferguson had suffered soreness to the jaw, and a bruised arm, as a result of being flung to the ground.
With regard to Tran’s offence of false imprisonment, Mr Silbert observed that, by his conduct, Tran had deprived Ferguson of her liberty for several minutes, that being the period during which she was being escorted from the premises and kept apart from her partner.
As regards the offence of intentionally causing injury, Tran, who occupied a supervisory role, had counselled and procured Hewetson and Turner to handle Ferguson in such a way as to inflict pain upon her. She could be seen, quite clearly, on the CCTV footage, to be crying out in pain. Tran did nothing to put a stop to any of this. Rather, he encouraged it. The jury’s verdict meant that they found that Tran’s intention had been to inflict gratuitous pain upon Ferguson.
Mr Silbert submitted that, in the unusual circumstances of this case, despite the lack of any serious or lasting injury to Ferguson, Tran’s moral culpability was great. He had clearly, and violently, overreacted to the very moderate provocation offered by Ferguson. By reason of his training and experience, he ought to have been able to exercise some degree of self-control.
Mr Silbert noted that Tran had run an entirely unmeritorious defence (for which he, of course, was not to be additionally punished). Nonetheless, he continued, even after conviction, to maintain his innocence. He showed no remorse whatever. He had failed even to offer an apology to Ferguson. Self-evidently, he could claim no credit for having pleaded guilty. His behaviour, in encouraging both Hewetson and Turner to inflict significant pain upon Ferguson (presumably as revenge for her having slapped him), was nothing short of sadistic, and represented a gross abuse of power.
Mr Silbert submitted that the fine of $8,000 imposed on Tran could only be described as ‘derisory’. Tran had occupied a position of ‘special status’ as a security officer, and his culpability was all the greater because of his supervisory role.
Mr Silbert referred to authority, both in this State,[10] and elsewhere,[11] in support of his submission that, purely by virtue of their status as security officers, both Fucile and Tran had to be punished more severely for their actions.
[10]R v Shaw [2000] VSCA 218.
[11]Mr Silbert referred, in particular, to R v Montgomery [1994] QCA 542 (‘Montgomery’); R v Taputoro [2007] QCA 29 (‘Taputoro’); R v Anderson [2012] QCA 264 (‘Anderson’); Hendra v The Queen [2013] NSWCCA 151 (‘Hendra’).
The cases to which Mr Silbert drew particular attention all involved security guards who had committed offences of a violent nature, and who were treated, on that basis, as having offended in aggravating circumstances. In each of those cases, the offender received a substantial term of imprisonment. However, Mr Silbert did not rely upon that fact as any sort of comparator for the purpose of determining current sentencing practices. Rather, he sought to utilise the various statements of principle contained in them to make good his point that those engaged in the security industry had a special duty to exercise restraint in the performance of their employment, and that they would receive heavier penalties if they failed to do so.
In Montgomery,[12] McPherson JA (with whom Fitzgerald P and Pincus JA agreed) spoke of ‘example and the need for deterrence to others in the same industry’ as a key factor in sentencing in cases of this kind. In Taputoro,[13] Keane JA (with whom McMurdo P and Mullins J agreed) specifically identified the applicant’s occupation as a security guard as a significant aggravating factor. In Anderson,[14] Holmes JA (with whom Gotterson JA and McMeekin J agreed) treated the applicant’s role as a security officer as warranting a heavier sentence than would otherwise have been the case.
[12][1994] QCA 542.
[13][2007] QCA 29.
[14][2012] QCA 264.
Recently, in Hendra[15] the New South Wales Court of Criminal Appeal adopted essentially the same approach. There, McCallum J (with whom Hoeben CJ at CL and RA Hulme J agreed) treated an offence of common assault, committed by a security guard, as warranting a total effective sentence of 18 months’ imprisonment. It was the applicant’s role, as a security guard, that was said to justify a sentence of that length, a significantly greater sentence than would have been imposed upon an offender who committed the same acts, but not in that capacity.
[15][2013] NSWCCA 151.
Mr Silbert submitted that nothing short of actual imprisonment, in the case of Fucile, and at the very least, a suspended term of imprisonment in the case of Tran, would operate as a general deterrent. He made it clear, however, that the only reason why he was now prepared to concede that a wholly suspended sentence would be within range for Tran was because of the various discretionary considerations that had emerged after the plea had concluded. He cited DPP v Karazisis,[16] noting the fact that Tran, in particular, had enjoyed freedom since having been sentenced, and that it would be a significant step for this Court now to order his imprisonment. Presumably, Mr Silbert regarded Fucile’s offending as having been so much more culpable than that of Tran as to override the weight that would ordinarily be given to a discretionary factor of that kind.
[16](2010) 31 VR 634 (‘Karazisis’).
The respondents’ submissions
Mr Holdenson QC, on behalf of Fucile, began by submitting that the sentencing judge had correctly observed that the offence of intentionally causing injury, of which his client had been convicted, was ‘clearly not the most serious example of this kind of offending’.[17] His Honour had accepted that Fucile’s behaviour had been spontaneous, and that the injuries inflicted upon Anderson had been at the lower end of the scale.
[17]R v Tran, Levchenko and Fucile [2013] VSC 363, [40].
According to Mr Holdenson, much the same could be said of Fucile’s offence of false imprisonment. This too should be characterised as having been at the lower end of the scale for this type of offence.
In addition, Mr Holdenson submitted that Fucile, having been subordinate to Tran, clearly bore less responsibility for what had occurred. Fucile believed that he had been entitled to use a ‘horizontal transport hold’ in removing Anderson from the premises. He, at all times, believed that he was acting in accordance with ‘standard operating procedures’. To that extent, his moral culpability should be regarded as lessened.
Mr Holdenson placed great weight upon the character evidence that had been led on the plea. He noted that the sentencing judge had concluded that Fucile was unlikely to engage in conduct of this type again. That meant that specific deterrence was not a significant factor to be taken into account in this case.
Above all else, Mr Holdenson relied upon the weight which he submitted his Honour had correctly attributed to the extra-curial punishment that Fucile would suffer as a result of losing his chosen career. The evidence was that Fucile loved his work as a security officer, and had wanted very much to continue pursuing that profession. That would no longer be possible. In and of itself, this amounted to a severe penalty, and reduced the need for a harsh punishment in order to accommodate general deterrence.
Mr Holdenson challenged the utility of relying upon any of the authorities cited by Mr Silbert in support of the Director’s appeal. He submitted that the offences committed in those cases were far more serious than those committed by his client and argued that, accordingly, the reasoning in them could hardly be said to be in point.
Finally, Mr Holdenson submitted that a fine totalling some $6,000 could not be described as ‘derisory’ for a man in Fucile’s position. He noted that Fucile earned only a modest income, something less than $50,000 per annum, and that payment of that amount would inevitably cause hardship.
Mr Holdenson contended that, if contrary to his primary submission, this Court accepted the Director’s argument that a fine of $6,000 was wholly inadequate, there were still several reasons why the appeal should be dismissed.
Mr Holdenson submitted that first, any increase in the sentence imposed upon Fucile would immediately create undue disparity between the level of his punishment, and that imposed upon Levchenko in respect of the charge of false imprisonment. He submitted that, in accordance with Green v The Queen,[18] this Court should therefore, in the exercise of its residual discretion, decline to intervene.
[18](2011) 244 CLR 462 (‘Green’).
Next, Mr Holdenson submitted that, there was, in any event, fresh evidence available, which, when properly considered, would justify the dismissal of the appeal in the exercise of discretion. That evidence was set out in various affidavits, and in a report outlining Fucile’s current mental condition. Furthermore, Mr Holdenson argued that even if the Court declined to exercise its discretion in favour of dismissing the appeal, the fresh evidence should, nonetheless, be taken into account in any resentencing of his client by this Court.
The fresh evidence is said to highlight the fact that, as a consequence of having been convicted, Fucile will now lose his position at Crown. In other words, he will not merely be prevented from acting as a security officer for 10 years, he will find himself unemployed.
In addition, the fresh evidence speaks of the impact that Fucile’s conviction has had upon him. It tells of how the conviction has affected his relationships with others. It points to his anxiety, and fear, at the prospect of now being more heavily punished by this Court and possibly imprisoned.
Finally, and as a last resort, Mr Holdenson submitted that if all his other arguments failed, and the appeal were to be allowed, any sentence of imprisonment that might be imposed should be wholly suspended.
Mr Dann, who appeared on behalf of Tran, was content to adopt much of Mr Holdenson’s argument insofar as it could be applied to his client. He submitted that a fine totalling $8,000 could not be said to be ‘wholly outside the range of sentencing options available to the sentencing judge’.[19]
[19]Karazisis (2010) 31 VR 634, [127]–[128] (Ashley, Redlich and Weinberg JJA), quoting R v Boaza [1999] VSCA 126, [42] (Winneke P).
Mr Dann noted that this Court had repeatedly said that a ground of appeal which contended that a sentence was manifestly excessive was, and ought to be, difficult to make good.[20] He submitted that the same approach should be taken to a Director’s appeal based upon the ground of manifest inadequacy.
[20]Dinsdale v The Queen (2000) 202 CLR 321, 325–6, 339–40; DPP v Werry [2012] VSCA 208, [52]–[53]; DPP v Saltmarsh [2013] VSCA 290, [8]–[12].
Mr Dann submitted that the sentencing judge had fully recognised, and given effect to, each of the aggravating features associated with his client’s offending. However, he had very properly balanced these against the various mitigating factors that were present. These included the fact that Tran was aged 35, and had no prior convictions. He had an unblemished 11 year employment history as a security officer. It was submitted that he had plainly learned a salutary lesson.
Mr Dann argued that although the offences of which Tran had been convicted were serious, it had to be borne in mind that they had not resulted in any significant injury. The pain that Ferguson had suffered was at the ‘lowest level of injury criminally punishable’. The false imprisonment to which she had been subjected was of relatively short duration, and was at the lower end of the scale for this type of offence.
Mr Dann submitted that, in the event that this Court was persuaded that the sentence imposed upon Tran had been manifestly inadequate, the appeal should nonetheless be dismissed in the exercise of the Court’s residual discretion. In that regard, he referred to the ‘fresh evidence’ adduced on behalf of his client and essentially adopted Mr Holdenson’s submissions in relation thereto.
Finally, Mr Dann submitted that, if this Court were minded to sentence Tran to a term of imprisonment, any such sentence should be wholly suspended. In that regard he pointed to the Director’s concession to that effect.
The principles governing the Director’s appeal
These principles are well settled. In Griffiths v The Queen,[21] Barwick CJ observed that:
…an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
[21](1977) 137 CLR 293, 310 (‘Griffiths’).
Crown appeals against sentence were originally considered to be ‘exceptional’ because of a concern that they eroded the common law protection against double jeopardy.[22] In Malvaso v The Queen,[23] such appeals were characterised as running ‘contrary to the deep-rooted notions of fairness and decency which underlie that common law principle’.
[22]R v Tait and Bartley (1979) 24 ALR 473, 476–7; DPP v Josefski (2005) 13 VR 85, 87-90.
[23](1989) 168 CLR 227, 234 (Deane and McHugh JJ).
It has been said that, despite the strictures of the High Court in Griffiths regarding the restraint that is expected of the Crown in sentence appeals, such appeals have, over the past three decades or so, become more numerous. The enactment of the Criminal Procedure Act 2009, and its abolition of the double jeopardy principle in relation to some aspects of such appeals, has itself had an impact upon the notion that these should be ‘rare and exceptional’.
In Karazisis, this Court made it clear that, in the light of the enactment of s 289(2),[24] double jeopardy no longer had any role to play in determining whether to allow a Crown appeal, or in deciding what sentence, if any, should be substituted for that found to be inadequate.
[24]Criminal Procedure Act 2009.
Nonetheless, Karazisis held that the Court’s residual discretion to dismiss a Director’s appeal survived the abolition of sentencing double jeopardy, provided only that the discretion was exercised on other grounds. Karazisis also held that the Director himself should bear in mind what courts of the highest authority had repeatedly said, over many years, about the restraint that should be shown in relation to such appeals.
In DPP v Bright,[25] a decision of this Court which, despite the enactment of 289(2),[26] still has application to Crown appeals, it was said:
…an appeal should not be brought unless the sentence reveals such ‘manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.
[25](2006) 163 A Crim R 538, 542 [10].
[26]Criminal Procedure Act 2009.
The Court’s reference, in the passage above, to ‘the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience’ was invoked by Mr Silbert in support of his submission that the fines imposed in this case were entirely inappropriate, and would be regarded by most members of the community as derisory.
It should perhaps be noted that the ‘shock the public conscience’ test has been the subject of judicial criticism.
In R v Sioziz,[27] Perry J, with whom Doyle CJ agreed, observed:
In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[27](2004) 236 LSJS 88, [20]. See also R v R, A W (2012) SASCFC 78, [42].
In R v Jones,[28] Peek J endorsed the South Australian Full Court’s earlier disapproval of the use of the phrase ‘shock the public conscience’ as one possible limb of the test for granting leave to appeal. He said:
…although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis.
[28][2010] SASCFC 58, [134].
On the state of the authorities that bind this Court, Mr Silbert was clearly entitled to invoke the phrase in support of his submission.[29] In our view, however, it should no longer be used in this area of discourse. The very notion of ‘the public conscience’ is itself of uncertain content, and its invocation sheds no light on the task which the appellate court must perform.
[29]See also R v Clarke [1996] 2 VR 520, 522.
In determining this appeal, we have had regard to the fact that Mr Silbert did not invite this Court to consider fixing heavier fines than those which were imposed. Indeed, he specifically eschewed any such submission. He made it perfectly clear that his case was that nothing short of imprisonment could possibly be appropriate, given the nature and gravity of these offences.
We can say at once that we entirely reject that particular submission. It was perfectly open to the sentencing judge to conclude that, although a short, sharp term of imprisonment might be within range, the principle of parsimony meant that such a sentence ought not be imposed.
In deciding that each respondent should be fined for his offending, his Honour, vastly experienced in criminal matters, no doubt had in mind the substantial body of research which suggests that a fine can, in appropriate cases, be an extremely effective deterrent.[30]
[30]See for example Richard G Fox and Arie Freiberg, Sentencing (Oxford University Press, 2nd ed, 1999) 363 [4.104]; Richard Edney and Mirko Bagaric, Australian Sentencing: Principles and Practice (Cambridge University Press, 2007) 365 [14.1]; R Morgan and R Bowles, ‘Fines; The Case for Review’ [1981] Criminal Law Review 203. See also A E Bottoms, ‘The Efficacy of the Fine: The Case for Agnosticism’ [1973] Criminal Law Review 543, in which reference was made to a Home Office response to a recommendation of the Streatfeild Committee, where it was said, unequivocally, that ‘[F]ines, particularly the heavier ones, appear to be among the most “successful” penalties for almost all types of offender’.
Nonetheless, the Crown’s submission that, on the assumption that the penalties involved in this case were manifestly inadequate, nothing short of actual imprisonment would suffice, cannot be regarded as determinative. If this Court reaches the conclusion that there was an error in the sentence first imposed,[31] and that a different sentence should be imposed,[32] there is no reason why the Director’s ‘all or nothing’ approach should prevent it from correcting the error made below.
[31]Criminal Procedure Act 2009, s 289(1)(a).
[32]Ibid s 289(1)(b).
We should say that we would not, ourselves, characterise the fines imposed below as ‘derisory’. At the same time, we are satisfied that those fines were not merely merciful, but outside the range reasonably open in the circumstances.[33]
[33]See Karazisis (2010) 31 VR 634, [127].
In the case of a fine, the court must, in determining the amount and method of payment, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.[34] We do not doubt that the fines imposed in this case would be regarded by each of the respondents as a significant punishment for what they regard as relatively low-level offending. It is by no means clear that this view of either the gravity of the offending, or the level of punishment inflicted, would be shared by the community at large.
[34]Sentencing Act 1991, s 50(1).
When one bears in mind the maximum fine that each respondent could have faced,[35] the fines actually imposed upon them may be seen in their true context. On any reasonable view of the facts, these fines were well below those merited by these offences.[36]
[35]The offence of common assault may attract a fine of 600 penalty units ($86,616), while the offences of intentionally causing injury and false imprisonment may each attract a fine of 1200 penalty units ($173,232). Tran and Fucile therefore faced maximum total fines of $433,080 and $346,464 respectively. Plainly, the principle of totality would have to be factored in to any aggregation of fines, resulting in a moderation of what might otherwise be regarded as appropriate for individual offences.
[36]The maximum penalty, of course, provides a ‘yardstick’ by which the gravity of the offence, as determined by the legislature, should be viewed: Markarian v The Queen (2005) 228 CLR 357, 372 [31].
We are conscious of the fact that there has already been a measure of ‘extra-curial punishment’ in this case.[37] By the time the respondents came to be sentenced, they had already lost their ability to continue as security officers. The ‘fresh evidence’ tendered on the appeal makes it tolerably clear that they will, in the near future, lose their jobs with the Casino.
[37]Hook v Ralphs (1987) 45 SASR 529, 543 (von Doussa J).
To some extent, however, these consequences flow directly from their offending. They have shown themselves to lack the self-discipline, and capacity for restraint, that would fit them to continue to be employed in the security industry. They are, in that sense, very much the authors of their own misfortune.
We recognise that the respondents are entitled to call in aid their prior good character. They can also, legitimately, point to the effect which the significant publicity accorded to this case has had upon them.
In the light of these factors, Mr Holdenson and Mr Dann invited this Court to dismiss this appeal in the exercise of its residual discretion. We have given careful thought to that submission. In the end, however, we have rejected it. We have concluded that this is a case where general deterrence is of such importance that any penalty meted out must be sufficient to achieve that object. In addition, the punishment imposed must make it clear that the respondents’ conduct was totally reprehensible, and is denounced.
In arriving at our conclusion that this appeal should be allowed, and the fines imposed below significantly increased, we have had particular regard, in the case of Tran, to the fact that his victim was a vulnerable young woman who posed no threat to anyone, still less a collection of burly, fit and obviously strong security officers. At a time of widespread concern within the community about the use of violence towards women, that is a matter that should be given appropriate weight.[38]
[38]See for example Donna Chung, ‘Understanding the Statistics About Male Violence Against Women’ White Ribbon Research Series – Paper No 5, May 2013.
With regard to Fucile, we would, but for one factor, have favoured increasing his fine for false imprisonment significantly. In Green, the High Court made it plain that, in the ordinary course, a sentence should not be increased on a Director’s appeal if the effect of doing so would be to create undue disparity, and a legitimate sense of grievance, in respect of the sentence of a co-offender whose sentence was not appealed. For whatever reason, the Director has chosen not to appeal the fine imposed upon Levchenko. That operates as a constraint upon this Court insofar as it considers what should be done in relation to Fucile’s sentence for false imprisonment. It does not, however, operate as a constraint upon this Court in relation to Tran’s sentence for his own act of false imprisonment. In any event, Tran’s offence was, in our view , more culpable than that of Fucile. There is no reason why his sentence for that offence should not be increased in order to render it appropriate.
We would set aside the fines imposed below and resentence the respondents as follows:
Tran
Charge on
Indictment
C1108174B.2Offence Maximum Sentence 1 Common assault [common law] 5 years [Crimes Act 1958 s 320] $6,000 fine
(with conviction)4 False Imprisonment [common law] 10 years [Crimes Act 1958 s 320] $4,000 fine
(with conviction)5 Intentionally cause injury [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] $6,000 fine
(with conviction)Total Effective Sentence: $16,000 fine (with conviction)
Fucile
Charge on
Indictment
C1108174B.2Offence Maximum Sentence 3 Intentionally cause injury [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] $10,000 fine
(with conviction)7 False Imprisonment [common law] 10 years [Crimes Act 1958 s 320] $2,000 fine
(with conviction)Total Effective Sentence: $12,000 fine (with conviction)
We understand that Fucile has already paid some portion of the $6,000 fine originally imposed, and that Tran has paid the entire amount of the $8,000 fine he received. For the avoidance of doubt, and because there may be some uncertainty associated with the recovery of moneys already paid under orders that will now be set aside, we should indicate that any such sums already paid are to be credited toward the fines now imposed.
TATE JA:
I agree with the President and Weinberg JA, for the reasons they give, that the sentences imposed were manifestly inadequate and the inadequacy was clear and egregious.[39] The Director’s appeals should be allowed.
[39]DPP v Bright (2006) 163 A Crim R 538, 542 [10].
The offending demonstrated an abuse of the power and authority vested in Tran and Fucile as security officers. Olivia Ferguson was subjected by Tran to violence and public humiliation that was unjustified and wholly disproportionate to her behaviour. Tran gratuitously counselled and procured others to inflict pain on her. Matthew Anderson was manhandled by Fucile who intentionally twisted Anderson’s arm to cause him pain needlessly. Those employed in the security industry who are entrusted with special powers to exert necessary physical control have a responsibility to ensure that they act with restraint and moderation. Far from discharging that responsibility, Tran and Fucile took advantage of their powers to hurt and humiliate Ferguson and Anderson. The offending demands a sentence that appropriately reflects general deterrence and denunciation to ensure that security officers know that their powers are to be exercised only for the purposes for which they are conferred and are not to be used unjustifiably or to humiliate others. Furthermore, there was no evidence of remorse. Nevertheless, as was apparent from the fresh evidence relied on in the appeals, both Tran and Fucile are now well aware of the consequences of their actions and society’s disapproval of their conduct.
For these reasons, I consider that the fines imposed on Tran and Fucile should be significantly increased in the manner proposed.
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