Le v The Queen
[2012] VSCA 43
•14 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
SAPCR 2010 0038
| TIEN QUOC LE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH and MANDIE JJA, WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 September 2011 | |
DATE OF JUDGMENT: | 14 March 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 43 | |
JUDGMENT APPEALED FROM | The Queen v Tien Le (Unreported County Court of Victoria, Judge Douglas, 12 July 2009) | |
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CRIMINAL LAW − Appeal against Sentence − Two counts of aggravated burglary, one count of rape, armed robbery, intentionally causing serious injury and recklessly causing serious injury − Whether sentence of 17 years’ imprisonment with non-parole period of 14 years manifestly excessive − Change in Crown position as to appropriate range of sentences – Appeal allowed − Sentence reduced to 15 years’ and non-parole period reduced to 12 years’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Victoria Legal Aid |
| For the Crown | Mr O P Holdenson QC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I have had the advantage of reading in draft the reasons of Mandie JA and agree for the reasons he gives that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.
There will be occasions where, as a consequence of the findings made by the sentencing judge or for some other reason, the Crown should reconsider the sentencing range or how the seriousness of the appellant’s conduct should be categorised.[1] That is to say it will not always be in the interests of justice for the Crown to maintain the position adopted in the court below. Sometimes it may even be necessary for the Crown to review its position during the course of the plea in mitigation.[2]
[1]See the discussion in Ashdown v The Queen [2011] VSCA 408, [174] as to the identification of the correct category of seriousness of the offending conduct.
[2]W C B v The Queen [2010] VSCA 230 [52] (Warren CJ, Redlich JA).
As Mandie JA has explained, on appeal the Crown changed its submission as to the appropriate range of the total effective sentence in compliance with its obligation under MacNeil-Brown.[3] It also altered its position as to the category of seriousness that should be assigned to the appellant’s conduct on particular counts.
[3]The Crown’s obligation is further examined in Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372, [70].
The submissions by senior counsel for the Director as to the appropriate range of sentences for individual counts and the total effective sentence, served to re-enforce the appellant’s submissions that notwithstanding that the appellant’s criminality was of a very serious order, the individual sentences on the counts of aggravated burglary were beyond the sound exercise of the sentencing discretion and the total effective sentence infringed the principle of totality.
This case thus serves to illustrate that the administration of criminal justice will be advanced where, in appropriate cases, the Crown reassesses the position it has previously adopted with respect to particular sentences the subject of appeal.
Such an approach is of importance where it leads to a submission that the range previously suggested was too high or too low or that the seriousness of particular offending had been wrongly categorised.
MANDIE JA:
On 19 January 2009, the appellant pleaded guilty in the County Court to two counts of aggravated burglary[4] (counts 1 and 5), one count of recklessly causing injury[5] (count 2), one count of rape[6] (count 3), one count of armed robbery[7] (count 4) and one count of intentionally causing serious injury[8] (count 6). On 12 February 2009, the appellant was sentenced to 6 years’ imprisonment on count 1, 2 years’ imprisonment on count 2, 9 years’ imprisonment on count 3, 4 years’ imprisonment on count 4, 6 years’ imprisonment on count 5 and 8 years’ imprisonment on count 6. It was directed that 2 years on count 1, 1 year on count 4, 2 years on count 5 and 3 years on count 6 be served cumulatively upon the sentence imposed on count 3, resulting in a total effective sentence of 17 years’ imprisonment. A non parole period
[4]Section 77(1) of the Crimes Act 1958 provides that ‘[a] person is guilty of aggravated burglary if he or she commits a burglary and- (a) at the time has with him or her any … offensive weapon …’, being ‘any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose’; or (b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.’ (25 years’ maximum).
[5]Section 18 of the Crimes Act 1958 provides that '[A] person who, without lawful excuse, … recklessly causes injury to another person is guilty of an indictable offence.’ (5 years’ maximum).
[6]Count 3 was a rolled up count in respect of anal and vaginal penetration. Section 38 of the Crimes Act 1958 relevantly provides ‘… (2) A person commits rape if - (a) he or she intentionally sexually penetrates another person without that person's consent - (i) while being aware that the person is not consenting or might not be consenting; or (ii) while not giving any thought to whether the person is not consenting or might not be consenting …’ (25 years’ maximum).
[7]Section 75(A) of the Crimes Act 1958 provides that ‘(1) A person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation firearm, offensive weapon, explosive or imitation explosive within the meaning assigned to those terms for the purposes of section 77(1). (25 years’ maximum).
[8]Section 16 of the Crimes Act 1958 provides that '[a] person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence.’ (20 years’ maximum).
of 14 years was fixed.[9] On 18 February 2011, the Maxwell P granted the appellant leave to appeal against sentence on the ground that the sentence was manifestly excessive. His Honour left it open for the appellant to rely upon other grounds.
[9]The learned sentencing judge stated pursuant to s 6AAA of the Sentencing Act that, but for the plea of guilty, she would have imposed a sentence of 20 years’ imprisonment, with a non-parole period of 17 years.
Facts
The facts giving rise to counts 1-4 relate to T1 and took place on 2 September 2004. The facts forming the basis of counts 5 and 6 relate to T2 and took place on 16 September 2004. On both occasions, the appellant entered the victim’s home disguised and armed. At the time he committed the offences, the appellant knew both victims, had been a visitor to their homes and mixed with their family socially.
On 2 September 2004, shortly after 8.30am, the appellant entered the home of T1 without her permission while she was dropping her children off at school. He had a knife and sticky tape with him.[10]
[10]Count 1 – Aggravated Burglary.
When T1 arrived home at approximately 8.50am, she found an unknown intruder, the appellant, in the house, wearing gloves with his face covered. The appellant punched T1 to the left side of her nose, grabbed her by the neck and forced her to the ground, face first. One hand was on her neck and the other was banging her head on the tiled floor.[11]
[11]Count 2 – Recklessly causing injury.
While banging T1’s head on the floor, the appellant stated that he would take some jewellery and leave. At that point, T1 noticed that the appellant had put a knife on the floor next to her. The appellant punched her to the right side of the head and kept banging the side of her head on the floor. He took off one of her socks and forced it into her mouth and then tied a jacket over her mouth and nose. The appellant removed T1’s engagement ring from her finger and her bracelet from her left wrist.[12]
[12]Count 4 – Armed Robbery.
The appellant then taped her wrists together with the sticky tape, picked her up from the floor and dragged her to her son's bedroom, where he pushed her onto the bed face down and pulled down her tracksuit pants. The appellant then penetrated the victim’s anus with his penis, moving it back and forward a couple of times before penetrating her vagina with his penis for about five minutes. He was not wearing a condom.[13]
[13]Count 3, Rape, rolled up count encompassing anal and vaginal penetration.
T1 received major bruising to the rear of her neck, head and her back and knees. She suffered swelling to the right ear and headaches. The appellant stole various items, including the engagement ring, diamond bracelet, earrings, two mobile telephones, a handbag, cash and personal papers valued at approximately $20,000. None of the items were recovered.
On 16 September 2004, the appellant entered the home of T2 through the rear toilet window after her husband had left for work. T2 was asleep with her four children, including her six week old infant.[14]
[14]Count 5 – Aggravated Burglary.
The appellant, again disguised, went to T2’s room where she was sleeping with her two younger children. He switched the light on and off and then jumped on top of T2, sitting on her stomach. He hit her several times to the face, causing her dizziness and pain. The appellant said he wanted money and gold and hit T2 several times with a sharp object which she felt was a belt buckle. He threatened to kill her infant with a knife. The appellant stuffed one of his cloth gloves into her mouth but she managed to remove it and threw it somewhere. The assault continued until T2 and the appellant fell on the floor. From that moment on she pretended to be unconscious or dead, whereupon the appellant left the premises.[15] After the appellant left, T2 saw a pair of pliers and a metal stick on the bed.
[15]Count 6 – Intentionally causing serious injury
T2 suffered soft tissue injuries on her head and face and a broken cheek bone, as well as bruises to her arms and shoulder. She required plastic surgery to repair the facial fractures.
The appellant travelled to the United States on 6 October 2004 where he stayed until he was arrested on 21 February 2008 by immigration officers and deported to Australia. Upon being interviewed by the police, the appellant stated that he did not recall the incidents but that he would plead guilty to them.
The sentencing judge concluded that the appellant had been motivated by a belief that T1 had told his former wife that he had a girlfriend, was gambling and abusing alcohol and drugs and the appellant feared that the information would interfere with his seeing his children. The appellant also stated in his record of interview that he had once worked for T2 but that she had sacked him and that he felt violent towards her and wanted to kill her.[16]
[16]Para [37] / p. 523 of Record of Interview: ’… when I went to work for her she gave me some troubles and she - and I want to hit her and she you know, she sacked me, that's why I'm very angry.’
Judge’s sentencing remarks
In her reasons for sentence, the judge said:
Your entering [T2’s] home disguised at night, knowing her husband was not there and she was at home with children, in particular a young baby, is reprehensible. The community is appalled that a person cannot consider themselves safe in their own home, in particular a woman with children. The physical attack on [T2] was gratuitously brutal. You attacked her, as you did [T1], when she was unable to fight back, as she was restrained at the time which is cowardly. You caused [T2] physical pain and injury as well as emotional trauma which I have no doubt will continue for a substantial period of time.
It is clear that any person who is assaulted in their own home by an intruder as each victim was in this case, would continue to be terrified for an indefinite period and not feel safe in their own home. It is of great concern to me, the sentencing judge, that you committed these offences as some sort of retribution to each [T1] and [T2].[17]
[17]DPP v Le (Unreported, County Court, Judge Douglas, Date of Sentence: 12 February 2009), [30] and [31].
The judge cited the psychiatrist’s report according to whom the appellant ‘continued to suffer from major depressive disorder and that he would not expect your condition to significantly improve whilst in custody and in fact, expected it to worsen with the attendant risk of suicide.’[18] Citing Verdins, the judge stated that she had taken in to account as a matter of mitigation the existence of the appellant’s current condition at the time of sentencing, noting that a given sentence may ‘weigh more heavily on the offender than it would on a person in normal health’.[19]
[18]DPP v Le (Unreported, County Court, Judge Douglas, Date of Sentence: 12 February 2009), [56].
[19]DPP v Le (Unreported, County Court, Judge Douglas, Date of Sentence: 12 February 2009), [57].
The judge emphasised the degree of pre-planning involved in each incident: [20]
58 … I have accorded a considerable amount of weight to protection of the community and general deterrence given the serious nature of your offending and the reason you offended against each victim. It is also significant that you have offended on two occasions in relation to two women. I have also given much weight to specific deterrence. This offending took place in the context of your dislike of each of the victims and the chaotic lifestyle you were leading, in particular the ingestion of drugs and alcohol which lowered your inhibition. The steps you took to commit the offences involved in each incident, show a degree of planning which reflects that you were able to think carefully about how you would carry out the offences and that you did carry them out successfully.
59 On each occasion you entered the home of a person which you had visited on an earlier occasion, brought tape with you, used the element of surprise, carried weapons, a knife and were disguised. …
…
64 The Court of Appeal has made it clear that those who deliberately commit home invasions with the intention to commit offences, including sexual offences and offences of violence, must be dealt with by condign punishment as the offending is considered to be extremely serious and causes enormous disquiet in the community.
[20]DPP v Le (Unreported, County Court, Judge Douglas, Date of Sentence: 12 February 2009), [64].
Her Honour further considered as aggravating that the appellant knew the house and the occupants in both cases as he had been invited by each family ‘on the basis of friendship’. The appellant ‘used that information for the purpose of planning and carrying out the offences’.[21] The judge also considered as aggravating that in the case of T2, the appellant committed the offences in the presence of her baby and young child, which meant that she felt frightened for her life and that of her children.[22]
[21]DPP v Le (Unreported, County Court, Judge Douglas, Date of Sentence: 12 February 2009), [62].
[22]DPP v Le (Unreported, County Court, Judge Douglas, Date of Sentence: 12 February 2009), [63].
Submissions
The appellant relied on two grounds of appeal against sentence.
Ground 1: The sentencing judge erred by sentencing the Appellant on counts 1 and 5 on the basis that he entered the homes of [T1] and [T2] with the intention of committing a sexual offence and an offence of violence.
Ground 2: In all the circumstances,
(a) the individual terms of imprisonment imposed by the judge;
(b) the order for cumulation; and
(c) the non-parole period
are manifestly excessive.
Ground 1
The appellant submitted that the judge’s sentencing remarks showed that she sentenced the appellant not for aggravated burglary with an intent to steal, as pleaded by the prosecution and to which the appellant had pleaded guilty, but rather for aggravated burglary with a positive intention to commit a sexual or violent crime.
The appellant argued that the ‘unusually high’ sentences imposed on counts 1 and 5 ‘could only be reconciled …with a form of the offence more serious than that to which the Appellant pleaded guilty.’ The appellant referred to the most recent sentencing snapshot which indicated that in the period from 2004-05 to 2008-09, only 2 per cent of all sentences imposed for aggravated burglary were of six years or more.
The appellant submitted that the judge’s remarks amounted to double punishment, arguing that it could not but be double punishment if the judge had attached to that aggravated burglary the features which related to the offences committed in the house.
The respondent submitted that the judge did not sentence the appellant on counts 1 and 5 on the basis that he had an intention to commit a sexual offence or an offence of violence.
The respondent further argued that the judge stated nowhere in her sentencing remarks that the appellant’s intention to commit a sexual offence or violent offence was the basis upon which she sentenced him for aggravated burglary. Moreover, the respondent submitted that [64][23] of the judge’s sentencing remarks ‘must be read as a whole’ and that the judge was simply adverting to the Court of Appeal’s statement about those who commit home invasions, sexual offences and offences of violence. The respondent further submitted that the phrase ‘home invasions’ used by her Honour was not a synonym for aggravated burglary but rather referred to a course of conduct which included entry into the subject property and the criminal conduct committed subsequent to that entry.
[23]See [20] above.
I would agree with and adopt the respondent’s submission. Considering the judge’s remarks as a whole, I do not think that the judge sentenced the appellant on counts 1 and 5 by reference to the acts and circumstances comprising counts 2, 3 and 6. I would therefore dismiss Ground 1.
Ground 2
In the written outline, the appellant emphasised the length of the non-parole period and the absence of any explanation for it by the judge. The appellant submitted that the non-parole period fixed represented 82 per cent of the total effective sentence and that it was inordinately high and should of itself invite scrutiny. The appellant further contended that the judge had not alerted counsel during the plea that she intended to exceed the Crown’s stated sentencing range. I note that on the plea the Crown had submitted that, predicated upon the basis that there might be some applications of the principles in Verdins,[24] the appropriate range was a total effective sentence of between 10 and 12 years with a minimum term between seven and nine years.
[24]R v Verdins (2007) 169 A Crim R 581.
In oral submissions, counsel for the appellant focused on the individual sentences for aggravated burglary, rape and intentionally causing serious injury and submitted that they were all manifestly excessive.
With regard to the offences of rape and of intentionally causing serious injury, the appellant said that the sentences imposed each fell within the top range depicted in the sentencing snapshot.
As regards the rape count, the appellant submitted that although ‘this was terrible offending’, it was not a ‘worst category rape’. As regards the intentionally causing serious injury count, the appellant argued that ‘this is not a bad example of intentionally causing serious injury’ because the injuries were ‘not in the worst category’.
The appellant acknowledged that there was some tension between current sentencing practices and the maximum sentence for the offences but even if the Court would otherwise have taken the view that current sentencing practices were inadequate, that conclusion should not be visited upon the appellant who had pleaded guilty in the expectation that current sentencing practices would be implemented.
I turn to the respondent’s submissions.
With regard to the rape count, the respondent submitted that when regard was had to the very grave manner of offending, a sentence of nine years was very much within the range of available sentences. As to the count of intentionally causing serious injury, the respondent submitted that a sentence of eight years was within the range. Whilst agreeing that the two individual sentences imposed for aggravated burglary were at the top of the sentencing range, the respondent pointed to the aggravating circumstances of the offences.
When asked specifically about the orders for cumulation, the respondent accepted that the cumulation flowing from the second incident (counts 5 and 6) might be considered to be ‘at the absolute top of the range for cumulation ‘.
With respect to the non-parole period, the respondent submitted that it was ‘appropriate and proportionate in all the circumstances’ and that
given that the appellant has pleaded guilty to three offences that carry a maximum penalty of 25 years’ imprisonment, committed within a week or so of each other, it cannot be said that the non-parole period imposed is outside the range, nor so proportionately high to require justification in all the circumstances of this case.
During the hearing, the Court asked counsel for the respondent to make a submission as to the appropriate range available to the sentencing judge and counsel for the respondent sought and obtained instructions. The respondent said that the range proffered by the Crown below was referable to an acceptance that the Verdins principles were applicable but, given that only one aspect of Verdins was applicable, the range suggested below was incorrect. The respondent submitted that the appropriate range was from 12 to 16 years for the total effective sentence and 8 to 12 years for the non-parole period. Although the respondent maintained that neither the sentences imposed nor the non-parole period were manifestly excessive, I consider that the submission as to the appropriate range implicitly conceded the contrary or, at least, that the contrary was strongly arguable.[25]
[25]See what was said by Maxwell P in Hilder v R [2011] VSCA 192 (Maxwell ACJ and Lasry AJA), [40]:
…a submission on range is, as the majority in MacNeil-Brown said, a submission to the effect that the sentencing discretion will be lawfully exercised if the sentence imposed falls within the range identified. The corollary is that, in the submission of the Crown, to sentence outside that range would be not lawful, that is to say, not within the range within which minds can reasonably differ.
It was not contended of course that (other than as relied upon under cover of Ground 1) the judge had made any specific sentencing error. It is evident that the judge appropriately took account of all relevant matters in reaching her conclusions as to cumulation and the fixing of the non-parole period and, in that regard, I note that her Honour stated:
… the offences are extremely serious and the circumstances of the offending on each occasion was appalling, notwithstanding you had never committed such offences before. In the circumstances your chances of rehabilitation depend on the successful completion by you of appropriate treatment before your release on parole, in particular the sex offenders program, a program in relation to violent offenders and a drug and alcohol abuse program. I have made orders for cumulation, taking in to account that there were two separate home invasions. Count 1 [and] 4 being the first and Count 5 and 6, the second. I sentence you on the basis that any sentence imposed must be proportionate to the criminality and not be crushing.
It must also be acknowledged that sentencing statistics are not an especially illuminating means of indicating the correct range of sentences reasonably open to a sentencing judge in any particular case and that caution should be exercised in relying on such data[26] and, further, that appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below was markedly different from sentences that have been imposed in other cases.[27]
[26]DPP v Maynard [2009] VSCA 129, [35]; See too: DPP (Cth) v Milne [2001] VSCA 93, 13; R v Skuta [1998] VSCA 35, [22]; (Phillips JA, agreeing in the result with Winneke P and Kenny JA); Pavlic (1995) 83 A Crim R 13, 31; DPP v CPD (2009) 22 VR 533, 547 [57] (Maxwell P, Redlich JA and Robson AJA).
[27]Hili v R (2010) 242 CLR 520, [59].
In the end, the question whether a sentence is manifestly excessive does not admit of much argument. In my opinion, the individual sentences imposed by the
learned sentencing judge on counts 1, 5 and 6 were manifestly excessive and fell outside the range reasonably available. However, I do not consider that the same can be said of the other sentences imposed, in particular, the sentence on count 3 (rape). I also consider that the total effective sentence was manifestly excessive and offends the principle of totality in all the circumstances. Accordingly, I would allow the appeal and resentence the appellant.
I would resentence the appellant as follows:
Count Term of Imprisonment Cumulation 1 4 years 18 months 2 2 years 3 9 years Base 4 4 years 1 year 5 4 years 18 months 6 6 years 2 years
This results in a total effective sentence of 15 years’ imprisonment and I would fix a non-parole period of 12 years.
WHELAN AJA:
I agree with Mandie JA. I also agree with the additional comments of Redlich JA.
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