Emmanual Deng-Mabior v The Queen (No. 2)
[2015] VSCA 277
•20 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0278
| EMMANUAL DENG-MABIOR | Appellant |
| v | |
| THE QUEEN (No. 2) | Respondent |
---
| JUDGES: | MAXWELL P and KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 20 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 277 |
| JUDGMENT APPEALED FROM: | DPP v Deng-Mabior (Judge Chettle, 15 June 2015) |
---
CRIMINAL LAW – Appeal – Sentence – Recklessly cause injury – Sentenced to 8 months’ imprisonment – Judge on plea had suggested 7–14 days – No explanation of increased severity of sentence – Alcohol-fuelled offending – Protection of community – Rehabilitation – Benefits of CCO – Deng-Mabior v The Queen [2015] VSCA 179 applied – Appeal allowed – Resentenced to 1 month’s imprisonment.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M White (Solicitor) | Matthew White & Associates |
| For the Respondent | Mr L Fluxman (Solicitor) | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
KYROU JA:
In October 2014, the applicant was sentenced by her Honour Judge Quin for an offence of violence (recklessly causing serious injury) committed on 20 January 2014. Her Honour imposed a sentence of two years’ imprisonment, together with a Community Correction Order (‘CCO’) for a period of two years.
Last Friday (17 July), this Court allowed an appeal from that sentence (‘the first appeal’).[1] The applicant was resentenced to 18 months’ imprisonment, together with a CCO for two years with additional conditions. The concluding paragraph of the reasons for judgment was in these terms:
Our reasons for reducing the custodial term by six months may be shortly summarised, as follows:
(a)the applicant has been an exemplary prisoner, his good conduct having earned him a position as head billet with responsibility for organising activities within the prison;
(b)we accept his counsel’s submission that this experience of prison — his first — has had a very salutary effect on him;
(c)the protection of the community, and the applicant’s prospects of rehabilitation, depend on his receiving proper and sustained treatment for his mental illness and his alcohol dependency. This can be much better achieved under the conditions of a CCO than in custody; and
(d)as explained in Boulton, a CCO with conditions such as these operates punitively for every day it is in force. That being so, and taking into account the punitive and deterrent effect of the time the applicant has spent in custody, we did not consider that any longer period of imprisonment was required to serve the relevant purposes of sentencing.
[1]Deng-Mabior v The Queen [2015] VSCA 179.
That appeal had been heard on 29 April 2015. The ultimate resolution was delayed pending the obtaining of a report from Community Corrections about the applicant’s suitability for a CCO. In the intervening period, on 15 June 2015, the applicant was sentenced by his Honour Judge Chettle for one charge of recklessly causing injury. The applicant had been convicted by a jury of that offence, which occurred on 11 March 2013, that is, some 10 months before the offending the subject of the first appeal.
The applicant has sought leave to appeal against the sentence imposed by Judge Chettle. Both he and the respondent are content to have the application dealt with on the papers. For reasons which follow, we would grant leave to appeal, allow the appeal and resentence the applicant to a term of imprisonment of one month.
Circumstances of the offending
On 11 March 2013[2] the victim (‘A’) visited the applicant’s home. Others were also in attendance and a small party occurred. Alcohol was being consumed by all. There was music and dancing.
[2]The offending the subject of the first appeal took place on 20 January 2014.
A was in the upstairs bedroom where the party had been held when the applicant returned to the room having left the premises in search of alcohol but returning without any. When he returned he observed A and others laughing. He became angry thinking that they were laughing at him.
The applicant approached A and slapped her face with an open hand. He then grabbed her by the neck and pushed her onto a bed. She bit his arm. Others tried to separate the applicant and A and the applicant walked out of the room leaving her sitting on the bed crying. The applicant returned carrying a 20 to 25 cm long sharp kitchen knife. People scattered as the applicant approached A. She scuttled up the bed away from the applicant and then grabbed an empty bottle and smashed it on a coffee table. She then hit the applicant with the bottle.
The applicant then swiped at A with the knife and during this attack she sustained a .5 of a cm superficial laceration to her wrist and a 15 cm long and 5 cm wide deep laceration to the back of her right ankle. The injury to her ankle probably occurred when she kicked at the applicant in self-defence. The applicant sustained a bite injury and lacerations to the head from being hit with the bottle.
The plea hearing
The plea hearing before his Honour commenced on 20 March 2015. His Honour was informed that the first appeal was scheduled for hearing on 29 April. The present matter was adjourned to 21 May, so that his Honour could be informed what had occurred in this court. On that occasion, his Honour was informed that this court proposed, in the first appeal, to reduce the term of imprisonment to 18 months and put the applicant on a CCO.
His Honour correctly addressed his attention to totality. The following exchange took place with defence counsel:
His Honour: And he beat the stuff that mattered in this, and at the end of the day I look with totality at what he’s doing, I would be very interested in if they gave him a sentence and a CCO to perhaps tack into that CCO for this. But I don’t know where we’re going with that and I haven’t heard from the Crown. But the reality is this is a recklessly cause injury charge I’ve got to sentence him for, which at the end of the day is the least of his worries, isn’t it?
Counsel: That’s right, Your Honour.
His Honour: So why don’t I bring him back — alternatively — I mean, if I gave him a short sharp seven days or 14 days for this he would be serving it concurrent with where he is now.
Counsel: I’m sure he would be happy with that.
His Honour: I mean, but that’s the point, isn’t it? It’s not worth much more than that. He has got no priors, has he?
Counsel:No, he did. I didn’t bring them with me, Your Honour, because I assume it would be a ---
His Honour then suggested that the injuries were very minor. The prosecutor pointed out — correctly — that there was a 15 cm wound to the back of the victim’s ankle. His Honour then said:
Well, maybe we could argue about the terms, but for a bloke with no form and what he is going down on — assume he got a month for it. He would be serving it concurrently with the sentence he is currently serving.
His Honour then adjourned the matter to 15 June 2015 for sentence. On that occasion, he imposed a sentence of 8 months’ imprisonment on the charge of recklessly causing injury. There is nothing in the sentencing reasons to indicate what had led his Honour to conclude that the offending called for a sentence so much more severe than that which he had suggested to counsel on the plea.
What is very significant, in our view, is that — like the offending the subject of the first appeal — this offending occurred when the applicant was heavily intoxicated. In the reasons published last Friday, the Court referred to the importance of the applicant’s alcohol dependency being addressed. Those remarks apply with equal force to this offending.
Secondly, it is clear that his Honour did not intend that the applicant serve any additional time in custody (although there would have been an extra 3 weeks if the sentence of 24 months the subject of the first appeal had stood unaltered). For that reason, his Honour made the sentence of imprisonment concurrent with the earlier sentence.
We are satisfied that the sentence of 8 months was outside the range reasonably open for this offending, having regard to considerations of totality and the mitigating circumstances. Moreover, his Honour did not have the benefit of the reasons for decision published on 17 July.
It is, in our view, overwhelmingly in the community’s interest, and in the applicant’s interest, that he be able to commence the CCO immediately. We refer to and adopt the considerations mentioned in the judgment in the first appeal (as set out in [2] above). We will resentence him to a term of imprisonment of one month.
0
0
0