Jong v The Queen
[2011] VSCA 27
•9 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0682
| JESSE JONG |
| v |
| THE QUEEN |
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JUDGES: | ASHLEY and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2011 | |
DATE OF JUDGMENT: | 9 February 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 27 | |
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Mullaly, 17 June 2009) | |
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CRIMINAL LAW – Sentence of five years and nine months’ imprisonment with non-parole period of three years for intentionally causing serious injury – Young offender – No prior convictions – Good prospects of rehabilitation – Judge erred by failing properly to apply sentencing principle of parity in respect of sentence imposed on co-offender – Appeal allowed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Slades & Parsons |
| For the Crown | Mr P N Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Jesse Jong, a man born on 18 June 1984, was found guilty after trial on a count of intentionally causing serious injury. The offence was committed on 5 March 2006. Jong was then aged 21, nearly 22.
A plea was made on Jong's behalf on 10 June 2009.
On 17 June he was sentenced to five years and nine months' imprisonment. The judge fixed a non‑parole period of three years and six months' imprisonment.
On 5 February 2010 Maxwell P granted Jong leave to appeal against sentence.
Grounds
By his full statement of grounds the appellant contends that:
1.The learned sentencing judge erred by failing properly to take into account the appellant’s youth and lack of prior convictions.
2.The learned sentencing judge erred by placing too much weight on deterrence and denunciation.
3.The learned sentencing judge erred by failing properly to apply the sentencing principle of parity in respect of the sentence imposed on co-offender Lay.
4. The sentence imposed is manifestly excessive.
5.The learned sentencing judge erred in the manner of application of the parity principle.
Counsel for the appellant, in his written submissions, argued ground 5 first, then ground 3. Finally, he argued ground 4 of which grounds 1 and 2 were treated as particulars. But today, orally, he accepted that ground 3 was at the heart of the matter.
Circumstances
The judge described the circumstance of the offences and the consequences for the complainant, as follows:
… In March 2006 you were employed by a ticketing company that was providing services for the Commonwealth Games held in Melbourne in March 2006. As a consequence you were required to work seven days a week for the duration of the Commonwealth Games.
You and your friends decided to go out on Saturday, 4 March 2006, as this would be your last weekend off before the Commonwealth Games commenced. You went to the Metro Nightclub in Bourke Street, Melbourne. It was seen by some of your friends as a sort of celebration, and alcohol was bought for you, including an expensive bottle of scotch whisky which was drunk by you and a number of your friends. I will say more about alcohol and its part in the sentencing process later.
You went to the nightclub with your then girlfriend, Ms Prilly Kurniawan, who gave evidence in the trial on your behalf. At the nightclub you met up with other friends, including David Lay and Kenny Lay, who also gave evidence on your behalf. Also at the nightclub was a Keith Chong and a Phillip Lay. As was made clear during the evidence, none of the men with the surname Lay are related.
You drank a significant amount of alcohol while you were at the Metro Nightclub. Your girlfriend had to work starting early the next day, and she left the nightclub at around1 a.m. She said that you were significantly affected by the alcohol that you had drunk when she left. You remained for about more two hours and continued drinking. Both David Lay and Kenny Lay in their evidence said that you were drunk and unstable, and not able to walk a straight line at around the time you eventually left the nightclub.
It was around 3 am that you wanted to leave. Your friends wanted to stay on and you were able to secure a lift with Phillip Lay and Keith Chong and you left with them some time after 3 am. Video footage of you leaving the nightclub and the general area was played to the jury. It was brief but it showed that you were able to negotiate stairs without needing to use the banisters and walk without any noticeable sign of unsteadiness. Also you appeared comfortable in the company of Keith Chong and Phillip Lay.
To continue the circumstances of your offending, you were travelling from the city in Phillip Lay’s car intending to go to your girlfriend’s unit in St Kilda Road. Phillip Lay was the driver. Keith Chong was in the front seat, and you were in the back. At about 3.30 a.m. the car driven by Phillip Lay was heading west in Little Bourke Street. When it got past Elizabeth Street, Mr Khalifa Yusuf and his friends Asegedech Kebede and Melake Russom were in the vicinity. They had been at a nightclub, the Khokolat Club, which was in nearby Hardware Lane.
Mr Yusuf had the misfortune to call out something to your group as you passed in the car. Mr Yusuf had been drinking as well that night, but it is to be noted that his friends in their evidence during the trial said that, when he called out, he was just being friendly. He did not know that such a benign thing as calling out to you and your friends would set in train such a catastrophe. Fuelled by alcohol and aggression, your group decided that what was said must have been an insult or a slight of some sort. Let it be absolutely clear: your group could have kept going. To do so would have meant Mr Yusuf’s life would not have been so profoundly and adversely affected. But your group decided that what you took as an insult had to be met with what, on any view, was disproportionate and outrageous violence.
Mr Yusuf was struck with a bottle by Keith Chong. The jury found that you were not guilty of the offence the Crown preferred against you for this and surrounding conduct, and you must and will get the benefit of that acquittal, but it is necessary, solely for the purposes of outlining the factual context for your offending, to mention relevant parts of that event. That is, that Mr Yusuf was injured and bleeding from his head.
In response to this attack on Mr. Yusuf, his friend, Mr Russom ran to where Phillip Lay’s car was and, as it left with you in it, he kicked the car. Again your group could have kept going, but you did not. It was said on your plea that, as you were not the driver, you were not in control. Of course you were not the driver of the car but, as the jury found, all three of you got out of the car, and this time Keith Chong took a car lock to use as a weapon. You, Mr Jong, made an independent decision and then carried through with it. Mr Russom was chased, but his good fortune in getting away from you was Mr Yusuf’s misfortune. Mr Yusuf was still injured on the side of Little Bourke Street. He was unable to get away, and he was extremely vulnerable.
You and the other men attacked him with such ferocity that it almost beggars belief. He was struck with a club lock, and there can be no doubt it was done in your presence and done with enormous force, given the profound head injuries Mr Yusuf sustained. It would seem from the forensic evidence that the blow with the club lock on an already bloodied head of Mr Yusuf was forceful enough to cause his blood to be projected a short distance and land on your jeans.
As a result of having suffered at least the initial blow with the club lock, Mr Yusuf went to the ground. While he was down, plainly injured, and importantly no threat to you or anyone else, he was set upon by Phillip Lay and Keith Chong and you. He was kicked to the head a number of times. This was just plain cruelty, and the level of violence and your involvement in it exposes a dark side of your character.
The evidence before the jury was well and truly sufficient for the verdict to be interpreted as you kicking Mr Yusuf yourself. The alternative put by the Crown was that you aided and abetted the other men. While the role of Keith Chong in using the club lock is the most serious, it seems that this is not a case where it matters much for sentencing purposes whether you were aiding and abetting others and/or kicking yourself.
The attack was of sufficient ferocity to cause the very serious injuries sustained by Mr Yusuf. Those injuries were a fracture of his skull, subdural and subarachnoid haemorrhages in his brain, complex fractures to his nose, eye sockets, right cheekbone and right jaw and a fracture to his arm near his elbow. He had multiple lacerations and missing teeth. The facial injuries were severe. The most telling evidence in relation to the injuries came from the forensic physician, Dr Sungalia, who said that essentially Mr Yusuf’s facial bones had become unhinged from the rest of his skull. She said the injuries he sustained were life threatening and indeed Mr Yusuf spent 14 days in a coma. He was moved from the intensive care unit to recover in other wards of the Royal Melbourne Hospital for a further two months. He underwent significant rehabilitation at the Royal Talbot facility. He has required assistance in rehabilitation, in particular with work. He has had painful dental work and may require more into the future. He was assessed as having cognitive deficits arising from his brain injury.
There was, unfortunately no up-to-date medical report assessing his condition. I was, however, provided with a victim impact statement which Mr Yusuf prepared recently in which he outlined the ongoing impact upon him of the attack. Its effect upon him is to all aspects of his life, that is it has affected his capacity to work, his social life, his capacity to make and keep friends and his independent living. Mr. Jong, as a young man just like Mr. Yusuf you should well appreciate the importance of being able to work, socialise with friends and move out of home. Mr. Yusuf is restricted in all these things. The psychological effect upon him has been significant …
It is not suggested that this description was in any way erroneous.
There were two co‑offenders. The co‑offender, Phillip Lay, pleaded guilty to intentionally causing serious injury. On 26 March 2007 he was sentenced by a County Court judge to four years' imprisonment with a non‑parole period of two years and six months. He appealed to this Court which, though confirming the head sentence, reduced the non‑parole period to two years. The Court had particular regard to Lay's youth. He was aged 20 at the time of the offending and was aged 21 at sentence. The Court further had regard to Lay's excellent prospects of rehabilitation. He had made sustained attempts to rehabilitate himself in the period after offending and before sentence.
The other offender, Phillip Chong, also pleaded guilty to intentionally causing serious injury. He faced four counts arising out of separate incidents in August 2005, September 2005 and the incident of 5 March 2006. On 19 February 2007 he was sentenced to seven years' imprisonment on the count involving the incident of March 2006. Sentences on the other counts were three, six and six years respectively. With cumulation, the total effective sentence was 12 and a half years' imprisonment. The judge fixed a non‑parole period of eight years.
Chong appealed unsuccessfully. The importance which his relative youth - he was 22 at the time of offending and 23 at sentence - might have had as a mitigatory circumstance was overwhelmed by the need to meet other objectives of sentencing law.[1]
[1]R v Chong [2008] VSCA 119 [4]-[5] (Kellam JA).
Regrettably, each of the three offenders was sentenced by a different judge and on a different day. Lay and Chong had been sentenced by the time the appellant was sentenced and indeed their appeals have been heard and determined.
Ground 3
I should refer immediately to ground 3, which contends that the sentencing judge erred by failing properly to apply the sentencing principle of parity in respect of sentence imposed on the co‑offender Lay.[2] Counsel for the appellant submitted that the appellant's head sentence was 44 per cent higher than that of Lay, and that his non‑parole period was 75 per cent higher. Yet, he submitted, the comparative culpability of the two men was approximately equal, except that in the appellant's favour he had been acquitted on the count of affray, that encompassing the initial attack by Chong - in which Chong struck the victim to the head with the broken end of a beer bottle, this causing lacerations and bleeding. Lay, on the other hand, was sentenced on the basis that he had participated in that offending.[3]
[2]It was not contended by either counsel that the sentence passed on Chong was relevant for a parity argument.
[3] See R v Lay [2008] VSCA 120 [5].
Other than that, counsel submitted – (a) both his client and Lay were young men; (b) the appellant had an unblemished record, whilst Lay had a prior conviction for a minor offence; (c) Lay had pleaded guilty; (d) Lay – by contrast with the appellant - had been a ‘high end’ recreational drug user which bore upon his prospects of rehabilitation; (e) there was a delay of more than three years between arrest and sentence in the appellant's case.
Counsel argued that prospect of rehabilitation had been given paramount important in Lay's case. It was of equal importance in the appellant's case, yet this had not been recognised by the judge.
Counsel noted also that the sentencing judge had characterised the sentence passed on Lay as ‘particularly merciful’, notwithstanding the intervention of this Court.
Counsel for the Crown submitted simply that there were reasons for the disparate sentences and that the sentence imposed upon the appellant could not leave him with a justifiable sense of grievance by reason of the sentence passed on Lay.
It is a fact that, by reason of the verdict on the count of affray, the appellant fell to be sentenced on the basis that his involvement in the injuries inflicted on the complainant was less than that of Lay. That is so although on the plea, it seems, his counsel conceded that there was ‘not much difference’ between them.
Next, each of the appellant and Lay was a quite young man - both at the time of offending and at the time of sentence.
It is then the fact that the appellant had no prior or subsequent convictions and had no history of recreational drug use. The contrast with Lay's situation was real, though perhaps those different circumstances were not of great importance in the sentencing synthesis.
Next, the appellant had progressed well in his employment in the three years between offending and sentence. As the judge put it:
You did well at school and university, however it seems that your real potential is shining through as you have moved into the work place …
You have an outstanding work ethic and all people who come in contact with you consider you a man of integrity and good prospect …
I will take into account your genuine potential and prospects. You have much to offer and no doubt you will be even more motivated to redeem yourself in the eyes of your family, your friends and employers. You are unlikely to re-offend.
Much in Lay's favour was his early plea of guilty, his remorse and his attempts to rehabilitate himself. The appellant had gone to trial, so he could not
claim such discount as a guilty plea should attract. On the other hand, his rehabilitation was not the less only because his starting point was further advanced than Lay's.
In my opinion the entire circumstance of the offence for which Lay and the appellant respectively fell to be punished, and the circumstances of the two offenders, could not possibly justify the differential in the sentences passed on the two men. The appellant, in my opinion, is entitled to have a justifiable sense of grievance, at the sentence imposed upon him. As the judge, perhaps somewhat grudgingly said, consistency in sentencing was important. It mattered not that his Honour considered the sentence passed on Lay to have been ‘particularly merciful’.
I would allow the appeal on this ground. I would re-sentence the appellant to five years' imprisonment and I would fix a non‑parole period of two and a half years' imprisonment. The difference between that sentence and the sentence passed on Lay would in substance reflect the significance for sentencing purposes for Lay's plea of guilty.
The other grounds
In the circumstances I need say nothing about ground 5 save but to note the reference by appellant’s counsel to the R v El Hassan.[4] Concerning grounds 4, 1 and 2, on the view I take of ground 3, they need not be considered. I should only say that, free from considerations of parity, I doubt that I would characterise the sentence passed upon the appellant, either as to the head term or the non‑parole period, as manifestly excessive.
[4](2003) 141 A Crim R 346 [47].
These reasons raise no question of principle.
BONGIORNO JA:
I agree with Ashley JA.
ASHLEY JA:
The appeal is allowed. The sentence imposed upon the appellant on 17 June 2009 is set aside. In lieu thereof the appellant is sentenced to five years' imprisonment. The Court fixes a non‑parole period of two years and six months. The Court confirms the other orders made below. The Court will make a declaration in the conventional form as to pre-sentence detention, the period subject to clarification, if needs be, being 628 days.
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