Koo v The Queen
[2011] VSCA 341
•20 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0296
| MOY CHOON KOO |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | MAXWELL P and HARPER JA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 20 October 2011 | |
| DATE OF JUDGMENT | 20 October 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 341 | |
| JUDGMENT APPEALED FROM | DPP v Koo (Unreported, County Court of Victoria, Judge Wood, 18 August 2010) | |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Leave refused by a single judge – Election to have application determined by the Court of Appeal – Sentencing error conceded by Crown – Whether less severe sentence would be imposed – Ill health – Whether up-to-date health information would justify sentence reduction – No significant deterioration – Leave granted but appeal dismissed – Criminal Procedure Act 2009 ss 280(2), 281(1)(b), 315(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M J Croucher | Victoria Legal Aid |
| For the Crown | Ms L Di Pietrantonio | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
After a trial in the County Court the applicant was convicted of two counts of obtaining a financial advantage by deception and six counts of theft.
He was sentenced to an aggregate term of four years’ imprisonment with a non‑parole period of two years and six months. He applied for leave to appeal against the sentence on two grounds. One concerned a failure of the sentencing judge to identify the notional constituent sentences and notional orders for concurrency and cumulation that went to make up the aggregate sentence. Before Weinberg JA, who heard the application, that ground was conceded to be reasonably arguable. There could have been no doubt that the ground would succeed. As Weinberg JA said, the sentencing judge had manifestly failed to comply with the requirements as enunciated in R v Felton[1] and R v Grossi.[2]
[1](2007) 16 VR 214 (‘Felton’).
[2](2008) 23 VR 500.
The second ground advanced before Weinberg JA was that the aggregate sentence and the non‑parole period were manifestly excessive. His Honour rejected that ground. His Honour went on to refuse leave to appeal on the basis of s 280(2) of the Criminal Procedure Act 2009 (Vic). As his Honour pointed out in his reasons, an application for leave to appeal may be refused even if there is a reasonably arguable ground of appeal:
if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.
The applicant has exercised his right of election to renew the application for leave to appeal before this bench of two judges.[3] On the application, counsel has not persisted with the ground of manifest excess, and has instead addressed the consequences of the Crown’s concession in relation to the Felton[4] error.
[3]Criminal Procedure Act 2009 (Vic) s 315(2).
[4](2007) 16 VR 214.
Counsel provided to the Court a bundle of information about the medical condition of the applicant in the period between August 2010 and June 2011. It comprises two documents headed 'Prisoner Health Summary', one for the period 30 July 2010 to 24 November 2010 and the second from that date to 22 February 2011. There are also letters from the applicant of February, March and June and a letter from St Vincent’s Hospital to the Health Services Commission.
The argument advanced was as follows. Given that the sentencing discretion would be reopened because of the error in the determination of the aggregate sentence, it would be open to the Court to resentence the applicant if he satisfied the Court under s 281 that a different sentence should be imposed. Counsel for the applicant submitted – correctly – that, for the purpose of the argument that a different sentence should be imposed, he would be entitled to rely on up-to-date information regarding the applicant.
This case is a reminder of the need for single judges, when considering the applicability of s 280(2), to be alive to the possibility of different material being available to the appeal bench if a ground of appeal should succeed. It is equally a reminder to counsel, when making written submissions or appearing on applications for leave, to alert the single judge to that possibility.
It is common ground that the material now relied on was not adverted to before Weinberg JA. The material is said to show a worsening of the condition of the applicant in respect of various health conditions from which he suffers. It is said that the burden of imprisonment is, to that extent, greater than the judge could have foreseen on the basis of the information available at the date of sentence.
Having had the opportunity to read the material carefully, I am not persuaded that a different sentence should be imposed. I should make clear that I am using the language of s 281(1)(b), not the language of s 280(2). It seems to me that it is important for the applicant to have had the appeal which a refusal of leave would have denied him.
I say that for this reason. The judgment which a single judge makes under s 280(2) is an assessment of what could reasonably be expected to happen were the matter to go to an appeal bench. As it happens, Harper JA and I constitute an appeal bench competent to dispose of a sentence appeal substantively. I propose that we do that, that is to say, deal with the appeal. Rather than being confined, as Weinberg JA was, to forecasting the future under s 280(2), we are in a position to examine the material, consider all of the circumstances relevant to the imposition of sentence and reach a conclusion on the appeal itself, under s 281(1).
Returning to the medical information, the submission for the Crown was that it was difficult to assess on the material whether the applicant’s condition had worsened. Ultimately, it was submitted, the material did not establish such a worsening. Judgments of that kind are always difficult for a non-medical tribunal to make, especially where, as here, there are multiple conditions, all of them in one way or another having been present at the date of sentence. How exactly one would assess an improvement or deterioration in any one of those conditions is really a matter for experts.
It is clear enough to the lay reader that quite a degree of medical attention has had to be paid to the conditions from which the applicant suffers. It is also clear that there have been some delays about which he has made complaint. Moreover, it would seem that there is some justification for his complaint so far as it concerns the appointment with an ophthalmologist.
Before I would be persuaded that a different sentence should be imposed, however, there would need to have been a quite significant or dramatic change in his condition. I see no dramatic or significant deterioration disclosed on the material provided to us. These are, as I have said, pre‑existing conditions of which the judge was aware, and all of them were referred to on the plea. The particular development in relation to the eye may not have been anticipated in detail but it is being attended to, and there is monitoring and treatment and modification of medication, as recorded. This Court is not, of course, in any position to evaluate the sufficiency of the management of these conditions, for obvious reasons.
The Crown conceded on the plea, as the sentencing reasons record, that the medical conditions were ‘moderately serious’. The judge referred separately to the submission made by defence counsel that the health conditions would make imprisonment more difficult, and that matter was taken into account, in accordance with established authority.[5] But it was only one factor to be weighed in the balance, along with the familiar sentencing considerations which a case like this would engage.
[5]See, eg, R v Smith (1987) 44 SASR 578, R v Van Boxtel [2005] VSCA 175.
The applicant has a very serious history of offences of dishonesty. In six separate instances, sentences of imprisonment had been imposed, some suspended but most to be served. In a case such as this, it is axiomatic that specific deterrence and protection of the community become very significant sentencing considerations. This kind of record betrays an attitude of contempt towards laws which are designed to prevent dishonest behaviour and, in particular, to prevent people doing what this applicant quite deliberately and deceitfully did, that is, get himself into a position of trust where he would have access to other people’s funds and exploit them to his own advantage.
When regard is also had to the fact that these were convictions following a trial, no discount therefore being available for a plea of guilty, I am far from satisfied that a different sentence should be imposed. For that reason , I would grant leave but dismiss the appeal.
HARPER JA:
I agree.
MAXWELL P:
The orders of the Court will be as follows:
1. The application for leave to appeal against sentence is granted.
2. The appeal is treated as having been instituted and heard instanter and is dismissed.
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