House v The Queen
[2021] VSCA 319
•19 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0105
| QASIM HOUSE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 19 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 319 |
| JUDGMENT APPEALED FROM: | [2021] VSC 419 (Taylor J) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Attempted aggravated carjacking, prohibited person possess firearm, reckless conduct endangering persons, theft, handle stolen goods – TES of 6 years and 3 months, with NPP of 3 years and 9 months – Manifest excess – Whether reasonably arguable that sentence of 5 years for attempted aggravated carjacking manifestly excessive – Whether reasonably arguable that TES and/or NPP manifestly excessive – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Mr J O’Connor | Gallant Law |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA:
On 15 April 2019, the applicant pleaded guilty in the Supreme Court to one charge of attempted aggravated carjacking, one charge of being a prohibited person in possession of a firearm, one charge of recklessly engaging in conduct placing persons in danger, one charge of theft and one charge of handling stolen goods. On 16 July 2021, he was sentenced as follows.
Charge Offence Maximum Sentence Cumulation 1 Attempted aggravated carjacking (Crimes Act 1958 s 79A; s 321M) 20 years 5 years Base 2 Prohibited person possess firearm (Firearms Act 1996 s 5(1)) 10 years 3 years 3 months 3 Reckless conduct endangering persons (Crimes Act 1958 s 23) 5 years 2 years 6 months 4 Theft (Crimes Act 1958 s 74(1)) 10 years 3 years 6 months 5 Handle stolen goods (Crimes Act 1958 s 88(1)) 15 years 6 months Nil Total Effective Sentence: 6 years and 3 months Non-Parole Period 3 years and 9 months Pre-sentence detention declared 1331 days 6AAA Statement: 8 years and 3 months, with a non-parole period of 5 years.
The applicant now seeks leave to appeal on the sole ground that the sentence imposed on charge 1, the total effective sentence and the non-parole period are all manifestly excessive.
Circumstances of the offending
On 23 November 2017, the applicant had been at the home of Yen Ngo. Ms Ngo was involved in the business of drug trafficking. The applicant had been in a sometimes intimate relationship with her for a few months. He also bought illicit drugs from her.
On that day the applicant had with him a firearm, a sawn-off shotgun in very ill repair. It lacked a trigger guard and both the barrel and the butt had been shortened. It was loaded. The applicant was prohibited from possessing a firearm because less than five years had passed since he had completed a term of imprisonment for an indictable offence. He had possession of the firearm for ‘protection’ given the drug milieu in which he and Ms Ngo were involved. It was the applicant’s possession of this firearm which gave rise to charge 2 (prohibited person possessing a firearm).
During the afternoon, Ms Ngo was asleep in her room. The applicant’s gun was on the corner of her bed. He was in another bedroom where, with others, he consumed a quantity of drugs. These included methylamphetamine (ice) apparently provided by Ms Ngo’s housemate, as well as heroin from the applicant’s own supply of drugs. The applicant then went to Ms Ngo’s bedroom where he sat on the floor with his back against the wall. He remained in her bedroom while she slept, either writing letters or continuing to smoke drugs by himself. At some point, Ms Ngo woke up and they smoked heroin together before the applicant drifted off to sleep.
The applicant has given evidence[1] that he awoke to hear Ms Ngo saying words to the effect of ‘I don’t care anymore’ and ‘kill me’. She went to grab the gun. The applicant lunged forward and tried to grab the gun, but failed to get a proper grip. It came out of his hand. The applicant lunged again for the weapon and, as he pulled it back, the weapon discharged. Ms Ngo sustained a gunshot wound to her chest.
[1]The applicant has been twice tried by a jury with charges relating to the death of Ms Ngo. He gave evidence in each trial. The first jury acquitted him of murder but could not return a verdict with respect to manslaughter. The second jury were also hung with respect to the charge of manslaughter. As the judge observed, when sentencing the applicant, no part of the sentence imposed by her Honour related to the death of Ms Ngo.
The applicant took Ms Ngo downstairs, receiving some limited assistance from her landlord, and outside the house. He then placed Ms Ngo in the rear foot well of her four wheel drive and took her to the Sunshine Hospital. He took the firearm with him. He was with Ms Ngo in the foyer of the emergency department as she was placed on a gurney. A uniformed police officer, present at the hospital for unrelated reasons, approached and spoke to him. The applicant left the foyer, entered his vehicle and took off at speed. He collided with a car in the hospital carpark.
The applicant drove from the carpark onto Furlong Road, going towards the Western Ring Road. He entered the intersection of those two streets against a red light, colliding with the front of a Toyota Hilux utility. The driver of that vehicle pulled into a bus stop. She got out to inspect the damage and made a telephone call on her mobile. The applicant also alighted from his vehicle, which the collision had rendered inoperable. He was holding what appeared to be a black bag and said ‘help me’.
The applicant then attempted to stop a number of passing vehicles before approaching a Mazda 2 sedan stopped at the lights of the Western Ring Road exit waiting to turn right into Furlong Road. He had the firearm in his hand. He first tried to open the driver’s door, but the door was locked. Next he lifted the butt of the firearm and hit the driver’s window three to four times in order to smash the window and gain entry to the vehicle. As he did so the barrel of the firearm dislodged and landed on the median strip. The stock and butt fell onto the road way. The driver of the Mazda vehicle accelerated through a red light to escape the situation. It was these events which constituted charge 1 (attempted aggravated carjacking).
The applicant then walked back to the Toyota Hilux. Its driver was still speaking on her mobile phone. He said to her words to the effect of ‘don’t call the police, don’t call the police’.
There had already been a number of 000 calls made to police and, at that point, two police officers arrived in a marked police car which had its lights flashing.
Senior Constable Hardwick approached the applicant with her gun drawn. It appeared to her that the applicant was holding something. She directed him to get on the ground and show his hands. Both police officers continued to yell at the applicant to ‘show your hands’. He ignored this directive and ran to the driver’s door of the Toyota Hilux and got behind the wheel. Leading Senior Constable Brennan deployed her OC spray through the open window. The applicant wiped his eyes and face before driving towards SC Hardwick and then west along Furlong Road. It was the applicant’s theft of the Toyota Hilux which constituted charge 4 (theft).
The applicant continued driving towards Mcintyre Road. More than once he veered onto the wrong side of the road. SC Hardwick and LSC Brennan followed, at some distance, in their patrol car. Eventually the applicant veered into the path of an oncoming Toyota Camry sedan near the intersection of Cooke Avenue and Furlong Road. The impact of that collision caused the stolen Toyota Hilux that he was driving to roll and sustain significant damage. It was the applicant’s driving of the Toyota Hilux in a fast and erratic manner along Furlong Road, placing persons in danger, which constituted charge 3 (reckless conduct endangering persons).
The applicant crawled out of the Toyota Hilux. He was arrested by other attending police officers on the nearby nature strip.
The driver of the Toyota Hilux involved in the initial crash was treated at the Sunshine Hospital for general soreness and shock. The driver of the Toyota Camry involved in the second collision was taken to the Royal Melbourne Hospital where he was treated for fractured ribs and a fracture to the sternum.
At the time of his arrest, the applicant was found to be in possession of identification documents in the name of Manmohan Shoi. The applicant knew or believed that they were stolen. It was the applicant’s possession of these documents that gave rise to charge 5 (handling stolen goods).
Applicant’s background
The applicant was born in 1984. At the time of his offending he was 32. At the time of sentencing he was 36. He was the only child of his parents, who separated when he was 5.
After the applicant’s parents separated, he had no contact with his father for several years. When he was 18, he contacted his father and met the children of his father’s subsequent partnership. However, neither his father nor his step-siblings were interested in maintaining a relationship with him.
As a child, the applicant lived in the Melton area with his mother, who had relationships with men involved in drug use and associated criminal activity. She had three more children, two of whom had been involved in the criminal justice system.
At school, the applicant was involved in school ground fights. He was twice sexually assaulted by an older male. When he was 15, his mother moved to New South Wales. The applicant remained in Victoria, as the judge put it ‘living a transient lifestyle with older males within a drug and criminal milieu’.[2] All of that said, the applicant completed years 11 and 12 at a TAFE college.
[2]R v House [2021] VSC 419, [32] (‘Reasons’).
The applicant’s drug addiction issues commenced when he was approximately 15. Initially he used amphetamines. This soon progressed to the use of methylamphetamine. At the age of 16, he developed a heroin dependency. At the time of his offending, the applicant was using one gram of methylamphetamine and 1.7 grams of heroin per day.
The applicant has a limited and sporadic employment history of factory and labouring work. He has a son, who was 8 years of age at the time of sentencing. The applicant’s relationship with the mother of his son ended acrimoniously in approximately 2016. Initially, the applicant had little to no contact with his son. Later, the applicant’s former partner lost custody of their son. The applicant’s son now lives with the applicant’s mother. The applicant’s mother is supportive of the applicant.
The applicant has an extensive criminal history going back to February 2008. His prior offending includes aggravated burglary, theft, theft of a motor vehicle, handling stolen goods, failing to answer bail, trafficking drugs of dependence and other drug offences, burglary, reckless conduct endangering life, committing indictable offences whilst on bail, intentionally damaging property, recklessly causing injury, contravention of family violence orders, possessing ammunition without a licence, possessing a prohibited weapon without an exemption or approval, fraudulent use of registration labels, breaching a suspended sentence and various driving offences.
The offences for which the applicant fell to be sentenced were committed approximately 4 months after he was last released from prison, having been sentenced in March 2017 to an aggregate term of imprisonment of 7 months for the offences of contravention of a family violence interim intervention order, theft, unlawful assault, persistent contravention of a family violence order, committing an indictable offence whilst on bail and recklessly causing injury.
Sentencing reasons
After noting the maximum penalties for the offences to which the applicant had pleaded guilty,[3] the judge summarised the circumstances of the offending.[4] In the course of her summary, the judge said that the objective gravity of the applicant’s offending and his moral culpability for it were ‘very high’.[5]
[3]Ibid [2].
[4]Ibid [3]–[17].
[5]Ibid [3].
The judge summarised the applicant’s personal circumstances, including his prior criminal history.[6] In the course of this summary, the judge referred to a report tendered on the plea, written by a psychologist, Lisa Jackson. Ms Jackson had assessed the applicant in her professional capacity ‘via a zoom meeting’ with the applicant in May 2021.
[6]Ibid [19]–[38].
Having described the circumstances of the applicant’s offending and his personal circumstances (including the fact that the applicant had responded well to pharmacological treatment while in custody, and that he had returned 22 negative urine screens),[7] under the heading ‘Analysis’, the judge then said:
[7]Ibid [35].
Your offending on 23 November 2017 was extremely serious.
Heavily intoxicated and aware throughout the entire course of your actions that the police wished to speak to you, you drove in an outrageous manner, utterly indifferent to anyone who crossed your path. Two other drivers were injured. You drove towards a police officer. And all road users in the vicinity were imperilled by your reckless and selfish behaviour.
You damaged Ms Ngo’s car and three others. You used a firearm to attempt to steal one vehicle, not simply by holding it, but also by using it to batter the window where the driver was seated. That driver could only have been terrified. Then, despite having a police officer draw a weapon at you and another spray you with OC spray, you took another vehicle and continued to drive. The whole event was sustained and only came to an end because you veered onto the wrong side of the road and caused a serious collision.
The maximum penalty for attempted aggravated carjacking indicates the seriousness with which the legislature treats such offending. And, for the reasons just outlined, the entirety of your conduct was inherently dangerous to numerous persons. Although you have acknowledged this in the evidence you gave at your trial, stating that at the time you were ‘out of your head’ and in shock at what had happened to Ms Ngo, your behaviour was brazen and self-motivated.
It follows that denunciation, protection of the community, just punishment and general deterrence are significant factors in the sentencing exercise. Drug intoxication coupled with the kind of driving you displayed and attempted aggravated carjacking must be met with condign punishment. Given your extensive criminal history, specific deterrence is also an important consideration.
At the hearing of your plea, five mitigating factors were highlighted, all of which were accepted by the prosecution.
First, your early plea to these offences. Notwithstanding that the evidence with respect to these offences is overwhelming, I accept that your plea is evidence of some remorse. You have also expressed remorse in a recently written letter. Your plea involves an acceptance by you of your offending conduct. It has utilitarian benefit.
Second, the delay between the offending conduct and your sentence.
Third, the stress and anxiety consequent upon standing accused in two trials concerning the death of Ms Ngo.
Fourth, that about ten months of your remand has been spent under a prison regime which, consequent upon the COVID-19 pandemic, meant that you had no contact visits, were occasionally locked down in your cell for 24 hours and there was a reduction in programs available to prisoners. That reduction notwithstanding, I note that you have used your time in custody productively. Certificates of courses you have completed at the Box Hill Institute and the Kangan Institute were tendered on your behalf.
Fifth, the stress and anxiety that separation from your son has caused.
I accept as genuine your desire to be a role model for your son. But in my view you are somewhat naïve as to how difficult it may be to raise him, always putting his needs above your own and simultaneously breaking free of the drug addiction and criminal behaviour that have characterised your adult life. The information before me is that your son has some behavioural issues. You have the support of your mother. You will have the support provided by the Department of Health and Human Services. And, you have been drug free in the custodial environment. It is to be hoped that the motivation you have will be powerful enough to sustain that sobriety in the less structured environment upon your release.
That said, given your long history of criminal behaviour and drug use and your limited response to past treatment and intervention, I find your prospects of rehabilitation to be guarded.
I have had regard to current sentencing practices. I have also considered the principle of parsimony.[8]
[8]Ibid [39]–[52] (footnote omitted).
Consideration
The applicant contends that the sentence imposed on charge 1 (attempted aggravated carjacking) is manifestly excessive, as is (so he contends) the total effective sentence and the non-parole period.
In support of his contention that the sentence on charge 1 is manifestly excessive, the applicant referred to this Court’s decision in Mammoliti v The Queen,[9] where a sentence of 6 years for the substantive offence of aggravated carjacking was described as ‘an outlier by a notable degree’.[10] While the applicant conceded that there are a relatively small number of sentencing decisions concerning the offence of attempted aggravated carjacking, he also relied upon a County Court decision in one such case, DPP v Russell,[11] where an offender received only 9 months for that offence, in support of his contention that the sentence imposed upon him on charge 1 was manifestly excessive. In addition to six other County Court sentencing decisions,[12] the applicant also referred to this Court’s decision in Teryaki v The Queen[13] where, on a re-sentencing for a number of offences, the offender received a sentence of 1 year and 6 months for his offence of attempted aggravated carjacking.
[9][2020] VSCA 52 (‘Mammoliti’).
[10]Ibid [57].
[11][2019] VCC 1909 (‘Russell’).
[12]DPP v Eddy [2018] VCC 1986; DPP v Harris [2019] VCC 230; DPP v Atkinson [2020] VCC 1708; DPP v Smith [2020] VCC 1194; DPP v Thiep [2020] VCC 2059; and DPP v Kleeman [2021] VCC 637.
[13][2019] VSCA 120.
In relation to his contention that the total effective sentence and non-parole period are manifestly excessive, the applicant observed that the first four of the five charges to which he pleaded guilty ‘related entirely to conduct in the immediate aftermath of his having taken Ms Ngo, mortally wounded, to hospital’. The applicant submitted that totality was therefore an important sentencing consideration in respect of those four charges. As to the fifth charge, the applicant submitted that this was ‘sufficiently minor that the prosecutor accepted during the hearing of the plea that it should not trouble the sentencing judge as far as the sentencing outcome was concerned’.
I will deal first with the submission that, by reference to Mammoliti, Russell, and the other sentencing decisions upon which the applicant relied, the sentence imposed on charge 1 (attempted aggravated carjacking) was manifestly excessive. That submission must be rejected.
First, while the Court in Mammoliti granted the offender leave to appeal, the appeal itself was dismissed.
Secondly, the passage in Mammoliti relied upon by the applicant was the recording (by McLeish and Emerton JJA) of a concession by the respondent that, when compared to the limited number of cases that might be described as comparable, the 6 year sentence in that case was ‘an outlier by a notable degree’. As Croucher AJA said, in his concurring judgment, when regard was had to the fact that there were only nine relevant sentences considered in the survey conducted in that proceeding, and that some of those individual sentences were less than three and a half years, ‘the pattern of sentencing revealed by those decisions [was] of less weight than it first appeared’.[14]
[14]Ibid [74].
Thirdly, the applicant gains no assistance from the sentence imposed by the County Court in Russell. The offender in Russell appealed to this Court against the sentence imposed upon him. While his appeal was dismissed, Priest JA (with whom Niall JA agreed) said that he regarded the sentence on charge 7 in that case as (the attempted aggravated carjacking charge relied upon by the applicant) ‘border[ing] on derisory’.[15]
[15]Russell v The Queen [2021] VSCA 221, [26].
Fourthly, as has been said many times before, current sentencing practices are only one of a number of relevant considerations which must be taken into account in the exercising of the sentencing discretion in a particular case.[16]
[16]DPP v Dalgliesh (2017) 262 CLR 428, 434 [9] (Keifel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ) (‘Dalgliesh’); White v The Queen [2021] VSCA 247, [70] (‘White’); Staples v The Queen [2021] VSCA 307, [88] (‘Staples’).
Fifthly, as has also been said many times, caution needs to be exercised in identifying the appropriate sentencing range by reference to previous sentencing decisions.[17] Comparable cases are not precedents and they do not fix boundaries that bind the courts.[18] In the context of sentencing, no two cases can be alike.[19] In Lieu v The Queen,[20] the relevant principles were summarised in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[21]
[17]White [2021] VSCA 247, [72]; Staples [2021] VSCA 307, [88].
[18]Dalgliesh (2017) 262 CLR 428, 454 [83] (Gageler and Gordon JJ); Boxer (a pseudonym) v The Queen [2021] VSCA 300, [48].
[19]Schaeffer v The Queen [2021] VSCA 171, [74].
[20][2016] VSCA 277.
[21]Ibid [46].
The question to be asked in the present case is whether it is reasonably arguable that the sentence imposed on charge 1 was manifestly excessive and/or whether it is reasonably arguable that the total effective sentence and/or the non-parole period were manifestly excessive. That question falls to be answered by reference to the circumstances of the applicant’s offending and the entirety of the applicant’s personal circumstances, including the matters the applicant is able to call in aid in mitigation, namely:
·the applicant’s early plea of guilty;
·the delay between the offending and sentence (caused primarily by the applicant having been tried twice on charges relating to the death of Ms Ngo);[22]
·the applicant’s stress and anxiety associated with having stood two trials concerning the death of Ms Ngo;
·the fact that the applicant spent about 10 months of his time on remand under a regime affected by COVID-19 related restrictions limiting movements within prison and the availability of programs in custody; and
·the stress and anxiety caused by the applicant’s separation from his son.
[22]Noting again that the applicant was acquitted of murder in his first trial; that in both trials the jury was unable to agree on a verdict on the manslaughter charge; and that no part of the applicant’s sentence related to the death of Ms Ngo. See n 1.
The judge described the applicant’s offending on 23 November 2017 (which included the attempted aggravated carjacking) as ‘extremely serious’.[23] The contrary is not reasonably arguable. As the judge observed in relation to the attempted aggravated carjacking, ‘[the applicant] used a firearm to attempt to steal a motor vehicle, not simply by holding it, but also by using it to batter the window where the driver was seated. That driver could not have been anything other than terrified’.[24]
[23]Reasons [39].
[24]Ibid [41].
As this Court has said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed is wholly outside the range of sentencing options available to the sentencing judge.[25] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. Again, as has been said many times, this is a stringent requirement, difficult to satisfy.[26] Taking full account of the applicant’s personal circumstances (including the matters in mitigation relied upon by the applicant on the plea and in this Court) it is not reasonably arguable that the sentence of 5 years (being 25 per cent of the maximum penalty) for the applicant’s offence of attempted aggravated carjacking, is manifestly excessive.
[25]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[26]Ibid.
The conclusion that it is not reasonably arguable that the sentence imposed on charge 1 was manifestly excessive goes a long way to establishing that it is not reasonably arguable that the total effective sentence (a mere 15 months longer than the sentence imposed on charge 1) was manifestly excessive. Having sentenced the applicant to 5 years on the attempted aggravated carjacking charge, the judge imposed what can only be described as modest sentences on the remaining charges, with orders for cumulation that were, in the circumstances, even more modest.
Having regard to the seriousness of the offence, the sentence on charge 3 (reckless conduct endangering persons) is particularly modest, as is the order for cumulation in respect of that charge. As the judge put it,[27] the applicant drove in an outrageous manner, utterly indifferent to anyone who crossed his path; he drove towards a police officer; and all road users in the vicinity were imperilled by his reckless behaviour. Albeit said in the context of different offending and a different offender, the words of Priest JA in Butler v The Queen[28] are apposite:
The applicant’s was appalling driving, by a man with a bad record, for the express purpose of evading police. Driving such as the applicant’s, putting the public in danger so as to avoid facing the consequences of other criminal activity, is to be strongly condemned and severely punished. Furthermore, general deterrence is of prime importance in a case such as this. People tempted to drive recklessly and endanger the public in order to evade police must know that when caught they will receive stern punishment.[29]
[27]Reasons [40].
[28][2019] VSCA 132.
[29]Ibid [42] (emphasis added).
Reasonable minds might differ about some of the elements which went into making up the total effective sentence in this case. Some judges might have imposed a higher sentence or order for cumulation on charge 3; equally, some of the sentencing decisions to which the applicant referred suggest that some judges might have imposed a slightly lower sentence on charge 1. That is no basis, however, for appellate intervention, or any interference with the present sentence. When one assesses the total criminality involved in the applicant’s offending, and gives full weight to the mitigating factors to which I have referred, there is simply no basis for contending that the total effective sentence was wholly outside the permissible range of sentencing options available to the judge. The sentence was well within range. The contrary is not reasonably arguable. The same may be said of the non-parole period which was, in all the circumstances, also modest.
Conclusion
It is not reasonably arguable that the sentence imposed on charge 1, or the total effective sentence, or the non-parole period, or any of them were manifestly excessive. Therefore the application for leave to appeal against sentence must be refused.
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