Hudson v The Queen
[2013] VSCA 218
•20 August 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0016 |
| SHANNON HUDSON |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, NEAVE and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 August 2013 | |
DATE OF JUDGMENT: | 20 August 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 218 | |
JUDGMENT APPEALED FROM: | [2012] VSC 592 (King J) | 1st revision 22 August 2013, para 1 2nd revision 23 August 2013, paras 3, 4, 18 |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Sustained, unprovoked attack in company in a public place – Youthful offender – Previous convictions for violent offences – Parity – Significant differences between co-offenders - Head sentence of 10 years and 6 months’ imprisonment not manifestly excessive – Non-parole period reduced from 8 years to 7 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Greg Thomas, Barrister & Solicitor |
| For the Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA
The appellant was arraigned in the Supreme Court and pleaded guilty to an indictment containing a charge of intentionally causing serious injury.
After a plea the appellant was sentenced to be imprisoned for a term of 10 years and 6 months, with a minimum term of 8 years’ imprisonment. The sentence was ordered to be served concurrently with a sentence the appellant was currently undergoing. At the date on which the sentence was imposed the appellant had served some 5 months of a 20 months’ sentence, with a non-parole period of 11 months.
The victim of the offence was one Minh Duong, a 21 year old Vietnamese university student, who was walking home from a part-time job in the evening of 27 June 2012, when he was attacked by the appellant, Wayne O’Brien and another.
The offenders had spent the day drinking. One of them ran across the road and struck the victim in the face, knocking off his glasses. The victim fell across a small brick fence adjoining a garden. The offenders repeatedly kicked and punched the victim while he was lying across the fence. At one point, while one of the offenders held the victim’s arm down and pinned him to the ground, the other offenders punched and kicked him to the head and his left arm.
The appellant demanded that the victim hand over his mobile phone, which had fallen to the ground. The victim attempted to find the phone so that he could placate the appellant. Mr Duong screamed and begged for mercy. Despite this, the offenders continued their assault. Mr O’Brien was also making racist comments.
Mr Duong made several attempts to get away. He was terrified, believing he was to be beaten to death. He repeatedly asked what the offenders were doing and why they were acting as they were. They did not reply but continued to rain blows upon him. At one point one of the offenders struck the victim with a sharp weapon, causing stab wounds to his arm and lower back. The appellant picked up a brick which had been dislodged from the wall against which the victim had fallen, lifted the brick over his head with both hands and brought it down on top of the victim’s head with such force that the brick broke in half.
Mr Duong was taken to hospital and assessed as being in a life threatening condition. He suffered multiple lacerations to his head, face and body, severe swelling of the brain, a comminuted left frontal skull fracture, other skull fractures, a fracture to the top of his spine, a torn cheek and lip requiring stitches and plastic surgery, stab wounds to his left forearm requiring stitches, two stab wounds to his lower back requiring stitches, loss of several front teeth, severe swelling and facial haematomas, bleeding to the face, head and body. After he left hospital Mr Duong has had further facial reconstruction surgery and continues to receive ongoing medical treatment.
A victim impact statement disclosed that Mr Duong had difficulty speaking as a result of the damage to his jaw and teeth and was fearful of strangers and travelling at night, incurred substantial medical expenses and lost time from work.
The judge said:
Photographs of injuries particularly of his facial area are horrendous. He is almost unrecognisable as a human being. [The offenders] are incredibly fortunate that he did not die. The beating he was given … was remorseless, violent and sustained.
At the hearing of the plea counsel for the appellant conceded that the assault was at least partially motivated by racial hatred.
The appellant is 21 years’ old. He was removed from the care of his biological parents when he was very young and placed in foster care. His mother died shortly after his birth and he has had little contact with his biological father. He left his foster family home in 2008 to live with friends. He has had subsequent periods of homelessness. The appellant has a history of self-harm during his early teens. He reported feelings of intense anger from an early age.
The appellant began drinking alcohol at the age of 14 years and used cannabis from the age of 15 years. He experimented with acid and ice from the age of 16 years.
The appellant was expelled from school for fighting in year 9 but was allowed to return to complete his examinations. He has worked in short-term employment involving labouring, welding and roof tiling.
In the course of the plea a report by a psychologist was tendered. The psychologist was of the opinion that the intellectual function of the appellant was well below average where 93 per cent of persons of his age would do better. Personality testing was also suggestive of considerable disturbance and disordered thinking with paranoid ideation, a schizoid trend and sociopathic features.
The appellant has had some 32 prior convictions from nine court appearances, including convictions for offences of dishonesty and violent offences. It is of particular significance that the prior convictions involved eight assaults upon different victims. In addition the appellant had been convicted on three occasions of armed robbery.
The appellant has been granted leave to appeal against the sentence on the following grounds:
1.With regard to the principle of parity, the learned sentencing judge erred in:
(a) holding that the principle had no application;
(b)imposing a sentence upon the appellant and the co-offender O’Brien that engendered a justifiable sense of grievance in the appellant; and
(c)failing to give notice to counsel for the appellant that the appellant’s actions during the incident were to be a significant reason for disparity.
2.The learned sentencing judge erred in imposing a sentence and non-parole period that were manifestly excessive having regard to current sentencing practices, the appellant’s plea of guilty at the earliest opportunity, the utilitarian value of that plea, his youth, his remorse and a need not to impose a crushing sentence.
O’Brien was sentenced by the same judge in the same hearing to a term of four years and six months’ imprisonment, with a minimum term of two years and six months’ imprisonment.
As to parity, the sentencing judge said:
I also have to impose a sentence that is just, and appropriate, and in light of your respective ages, not a crushing sentence. The issue of parity with your co-offender, who was dealt with in a Children’s Court, is not relevant for the purpose of sentencing you as adult offenders. In terms of the issue of parity between you, once again the issue of parity can have no application to your circumstances, which as I have outlined in these sentencing remarks, are distinctly different.
This statement was incorrect: parity of sentences to be imposed on co-offenders is always relevant. A sentencing judge should consider, amongst other relevant matters, the similarities and differences between the culpability and personal circumstances of co-offenders in order to determine appropriate sentences. I doubt that the sentencing judge meant only that because there were relevant differences between the personal circumstances of O’Brien and the appellant, they were not to receive the same sentence.
The remaining question is whether the disparity in this case was justified should a different sentence now be passed.
Unlike the appellant, O’Brien had no prior convictions. He was found to be genuinely remorseful. On the other hand the sentencing judge said of the appellant that a major consideration in determining an appropriate sentence was the need to protect the community from him. O’Brien was to serve his sentence in protective custody. Although O’Brien punched and kicked the victim, he did not smash a brick over his head. Counsel for the appellant at the plea appears to have accepted that this circumstance was relevant, and that, I consider, disposes of the natural justice point. O’Brien made full admissions to the police and made statements capable of being used against his co-offenders and was willing to give evidence against them. Further, the sentencing judge found that O’Brien was genuinely remorseful and had reasonable prospects of rehabilitation. On the other hand Her Honour said the appellant had, ‘A very high prospect of re-offending.’
The principles to be applied were stated in the following terms in Postiglioni v R by Dawson and Gaudron JJ:
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.[1]
[1](1997) 189 CLR 295, 301.
In the present case there were significant differences between O’Brien and the appellant, which, in my opinion, required a considerable difference in their sentences. Of particular importance were the co-operation given by O’Brien to the authorities which ordinarily attracts a substantial discount to a sentence, his lack of prior convictions, his remorse and prospects of rehabilitation. I doubt that I would have imposed sentences so widely apart but I am not prepared to say that the disparity was beyond that at which a reasonable sentencing judge could arrive in the exercise of the sentencing discretion.
Pursuant to the second ground of appeal, counsel for the appellant, while conceding that the offending was very serious, submitted that the sentence was beyond that which could be imposed by a reasonable sentencing judge. Counsel placed some importance on statistics, which disclosed that of 86 cases in this Court in which intentionally causing serious injury was the principal offence, in only two cases were longer sentences imposed, and also that the median sentence for the offence in the period from 2006 to 2011 was four years and six months’ imprisonment.
The maximum sentence for the offence of intentionally causing serious injury is 20 years’ imprisonment. That penalty demonstrates how serious the offence is considered to be. In fact, the offence is the most serious of injury offences short of homicide. It involves the infliction of serious injury with the intention or desire to bring about that result.
The offending in the present case was grave indeed. The appellant and his co-offenders launched a brutal, sustained attack upon a defenceless youth who had done nothing to occasion being beaten to the point of death. The offence was not an uncharacteristic aberration on the part of the appellant, his history demonstrates that the offence was consistent with a disposition to inflict injury on others in flagrant disregard of the law. It seems that his dangerous propensity has not been affected by earlier punishment.
Retribution, general and specific deterrence, denunciation and protection of the community are all relevant sentencing considerations in this case. Having regard to the gravity of the offence, while the appellant’s relative youthfulness and the general importance of rehabilitation for youthful offenders, are of significance, that significance is less than it would have been in the case of a less serious offence. The appellant has been given previous chances to control his aggression but has persisted and was to be sentenced for a crime of wanton and unprovoked viciousness.
I am conscious of the mitigating circumstances upon which the appellant could rely, including his early plea of guilty, his relative youth and his deprived upbringing. Nevertheless, while the sentence may be described as severe, I am of the opinion that in this case, for this offender, the head sentence was a sentence which was within the range of a reasonable sentencing discretion.
I do think, however, that the non-parole period is excessive, having regard to the youthfulness of the appellant and the fact that he would benefit from an extended period of supervision on release from prison. Accordingly, I would reduce the non-parole period to seven years.
I would allow the appeal and re-sentence the appellant to a term of 10 years and 6 months’ imprisonment with a minimum term of 7 years’ imprisonment. The term of imprisonment imposed by this Court is to be served concurrently with the sentence that the appellant was undergoing when he was sentenced by Justice King.
NEAVE JA:
I agree.
PRIEST JA:
I also agree.
BUCHANAN JA:
The order of the Court is that the appeal is allowed. The appellant is re-sentenced to be imprisoned for a term of 10 years and 6 months’ imprisonment, with a minimum term of 7 years’ imprisonment. The term of imprisonment imposed by this Court is to be served concurrently with the sentence the appellant was undergoing when he was sentenced by Justice King.
The ancillary orders made below are confirmed.
I should make it clear that the non-parole period which I announced is one which applies to both the current sentence and that which was imposed below, which was being undergone by the appellant at the time he was sentenced. It is the new global non-parole period. The pre-sentence detention declaration will be a declaration of 251 days not including today.
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