Le v the Queen
[2010] VSCA 199
•20 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0681
| VAN HUNG LE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P and REDLICH and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 July 2010 | |
DATE OF JUDGMENT: | 20 July 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 199 | |
JUDGMENT APPEALED FROM: | R v Le (Unreported, County Court of Victoria, Judge Pilgrim, 30 May 2008) | |
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CRIMINAL LAW – Sentence – Aggravated burglary, attempted theft and recklessly causing injury – Total effective sentence of six years and three months’ imprisonment – Non-parole period of four years – At time of sentence, offender serving non-parole period under previous sentence – Sentencing judge did not fix single non-parole period as required by s 14 – SentencingAct 1991 (Vic) – Resentenced – Same total effective sentence – Single non-parole period of four years fixed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S R Johns | Balmer & Associates |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I will invite Harper JA to deliver the first judgment.
HARPER JA:
This appeal comes to this Court following the grant by Neave JA of leave to appeal.
On 30 May 2008, the appellant, Van Hung Le, pleaded guilty to two counts of aggravated burglary (Counts 1 and 2); one count of attempted theft (Count 3); and one count of recklessly causing injury (Count 4). The maximum penalty for aggravated burglary is 25 years' imprisonment. Each of attempted theft and recklessly causing injury carry a maximum penalty of five years' imprisonment.
The appellant is a drug addict. On 10 June 2007, he was short of money and short of drugs. He decided to solve the second of these problems by burglary. At about 2.30am that day he entered a house at 6 Buxton Street, Footscray. Unbeknown to him, there was someone inside. She screamed when saw him, and he departed without having stolen anything. His illegal entry nevertheless constituted the basis for Count 1. The offence of burglary is aggravated if (among other things) at the time of entering the building someone was present inside and the offender knew of that fact, or was reckless in ignoring the possibility.
Having failed at Buxton Street, the appellant then travelled to another part of Footscray. At about 3.45am he entered the flat at 6/34 Geelong Road. On this occasion he gained entry by forcing a bathroom window. Again, someone was inside; but he neither knew nor cared.
Once inside the flat, the appellant entered the master bedroom. He then removed a bag or basket containing various items of jewellery, the value of which was, in all, some $1,000. Before the appellant could make his escape, however, he awakened a resident of the flat - Mr Sudhirnath Buddi.
There was a confrontation. The appellant dropped the jewellery container and attempted to climb out of the window through which he had obtained entry. But before he could make his escape, Mr Buddi pulled him back. During the resultant struggle, the appellant wrenched a metal towel rail from the wall, and used it to strike Mr Buddi once in the head and several times on the shoulder. Neighbours were alerted by the noise, and called the police. Before they arrived, the victim wrestled the towel rail from the appellant and himself used it as a weapon. Both men received injuries for which both were treated at the Western Hospital. Mr Budii suffered from a cut to the left eye, bruising and swelling. These required what the Crown described at the plea as 'minor treatment'. The appellant was admitted overnight with head injuries which, it seems, have left him with impaired hearing and an increased incidence of headaches.
The appellant was interviewed by the police on 12 June 2007. He admitted that he had entered the flat, that he intended to take the jewellery and that a struggle had followed his unsuccessful attempt to escape. As he told the police, ’by struggling with him’ Mr Buddi, the bar may have hit him.’ It is upon this account of what happened at the flat that Counts 3 and 4 are based.
The plea hearing took place on 30 May 2008. Sentence was pronounced the same day. On Count 1, the appellant was sentenced to five years’ imprisonment. Although his Honour did not explicitly nominate it as such, this seems to have been the base sentence. The sentence on Count 2 was also five years’ imprisonment, with one year of that five to be served cumulatively upon the sentence imposed on Count 1. On Count 3 (attempted theft) the appellant was sentenced to one year's imprisonment, made wholly concurrent with the other sentences. On Count 4 (recklessly causing injury) the appellant was again sentenced to one year's imprisonment, but three months of this was ordered to be served cumulatively upon the sentence on Count 1. The total effective sentence was therefore six years and three months' imprisonment. The learned sentencing judge further order that:
the sentences imposed this day are to be served concurrently with any sentence [the appellant] is now undergoing. I also order in respect of the sentence imposed this day that [the appellant] is to serve a minimum term of four years' imprisonment before being considered as eligible for parole.
In fact, the appellant was indeed undergoing another sentence: one of 28 months' imprisonment, with a non-parole period which, on 30 May 2008, had not expired. In these circumstances, the sentencing judge was bound by s 14 of the Sentencing Act 1991 (Vic) to fix a new, single non-parole period.
His Honour may have intended to do this. But if he did, the requirements of s 14 were not met. The section provides that, if a Court has sentenced an offender to be imprisoned, and has fixed the non-parole period in respect of that sentence, and if – before the end of that non-parole period – the offender is sentenced to a further term of imprisonment with a non-parole period, then the Court must fix a new, single, non-parole period in respect of all the sentences which the offender is to serve or complete. This new period supersedes any previous non-parole period, and must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence has not been imposed.
In specifying that the non-parole period fixed by him was ‘in respect of the sentence imposed this day’, his Honour failed to fix with the necessary certainty the new single non-parole period to which s 14 refers. It is important that there be no room for doubt about the meaning and effect of a sentence or sentences. Accordingly, as the Crown concedes, the sentences below must be set aside and the appellant re-sentenced. Ground 1 of the grounds of appeal, which is that the learned sentencing judge erred in failing to comply with s 14 of the Sentencing Act 1991 (Vic), is therefore made out.
Two other grounds remain. Ground 2 is that his Honour erred in failing to apply the principle of totality. Ground 3 is that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive. An examination of these grounds necessitates an examination of the appellant's background, and in particular his history of offending, the reasons for it and the purposes for which punishment may be imposed.
The appellant was born in central Vietnam, the second of five children, on 18 October 1955. He is therefore now 54 years of age. He attended school until the age of 14 when he commenced to work with his father as a fisherman. This ceased following his father's arrest for opposition to the Communist government. At about the same time, his mother was killed and the family house seized.
All five siblings came to Australia as immigrants. The appellant left Vietnam, it seems as an asylum seeker, in 1980. He did not arrive in Australia, however, until 1981, aged 25, after being interned in Malaysia before successfully applying for admission to this country.
The appellant married in 1987, and has two children, now both young adults. His relationship with his wife had, up to at least the time of his plea in May 2008, remained unbroken, though strained.
Although his ability to speak English is very limited, and for years was non-existent, the appellant found employment until, in 1985, his spinal column was injured when, as a pedestrian, he was struck by a car. This resulted in his being certified as unfit for work; but it also had the consequence that he has since suffered from chronic pain, with the added consequence that he became addicted first to a legal pain killer and then to heroin. Being unemployed for all but short periods since, he obtained the funds with which to purchase his drugs by resorting to burglary and theft; and, on 18 November 1986, he was convicted of multiple counts of both offences as well as being in possession of property suspected of being stolen and using a drug of dependence. He was sentenced to six months' imprisonment; but, upon his entering into a reconnaissance in a sum of $500 on the condition that he abstain from alcoholic liquor or drugs of addiction and attend Pleasant View as an in-patient, this was wholly suspended for a period of two years pursuant to s 13 of the Alcoholics and Drug-dependent Persons Act1968 (Vic).
There followed a number of other convictions in respect of which the courts showed considerable mercy towards the appellant. Unfortunately, this was not reciprocated, as his history shows. On 31 March 1987 he was convicted of burglary and sentenced to six months’ imprisonment which, on appeal to the County Court, was varied; he was released on entering into a bond in the sum of $200 to be of good behaviour for two years. Less than a year later – on 10 February 1988 – the appellant was convicted on two charges of burglary, one charge of theft, and a charge of failing to answer bail. On this occasion, the total effective sentence was six months’ imprisonment, which was wholly suspended for a period of 12 months; but on 31 May 1989, the appellant was dealt with for breach of this sentence, which was reinstated so that the six months' imprisonment was actually served.
The breach was constituted by the appellant's conviction on 13 October 1988 for burglary and theft, for which he was sentenced to be imprisoned for a total effective sentence of six months, again (as with the sentence imposed on 10 February) wholly suspended for a period of 12 months. At the same time, the appellant was also sentenced to pay a fine of $500. Then, on 3 August 1989, the appellant was dealt with for breach of this, his second, suspended sentence – being also his second failure to honour the terms upon which, on each occasion, he had been released. The second suspended sentence was, accordingly, ordered to be reinstated and served.
In the meantime, the appellant had, on 31 May 1989, been dealt with not only for breach of his suspended sentence of 10 February 1988, but also for his conviction, recorded that day, on a charge of being in possession of property suspected of being stolen or unlawfully obtained. He was sentenced on this charge to six months' imprisonment, to be served concurrently with the six months of the suspended sentence which had on that day been reinstated.
The appellant's behaviour was becoming sadly repetitious. He was before the Magistrates Court on 3 August 1989, not only for breach of the suspended sentence imposed on 13 October 1988, but also on three counts of burglary, two counts of each of theft, failing to answer bail and using a drug of dependence, and one count of each of attempted theft, fraudulently using a number plate, and possession of a drug of dependence. A total effective sentence of 24 months' imprisonment was imposed, with an order that the appellant serve 18 months before being eligible for parole.
There followed, on 21 May 1991, convictions for burglary and attempted burglary; on 26 April 1995, for theft; on 23 January 1998, for trafficking in a drug of dependence; on 13 August 1998, for breach of the suspended sentence, possession of a drug of dependence and trafficking in a drug of dependence; on the next day, 14 August 1998, for destroying or damaging property with intent and failing to answer bail; on 9 January 2001, for one count of trafficking in a drug of dependence and one count of using a drug of dependence; and on 30 October 2002, for trafficking in a drug of dependence, possession of property being the proceeds of crime, burglary, theft and going equipped to steal.
In 1991, the appellant had suffered a further most unfortunate accident. He was about to re-entered his parked car. The driver's door, through which he intended to gain access to the interior, was open. He was standing next to it when a truck hit the door. The appellant suffered a ruptured spleen (which has since been surgically removed), a broken arm, a bad gash on that arm, and an aggravation of his spinal injury.
It was over a year and a half before the next conviction was recorded. On 24 May 2004, the appellant was convicted of trafficking a drug of dependence, attempted burglary, burglary (seven counts) and theft (five counts). A year later, on 4 August 2005, having in the meantime served 12 months in gaol, the appellant was convicted of trafficking in a drug of dependence. Finally, the appellant was on 21 August 2007 (and, accordingly, after the commission of the offences now under consideration) convicted on unrelated offences and sentenced to 16 months' imprisonment, with a non-parole period of ten months. He was therefore eligible for release on parole on 20 June 2008, three weeks after the date on which his present sentences were pronounced.
The appellant continued to take heroin during his periods of incarceration. His counsel put to the sentencing judge, however, that he was then (May 2008) on a methadone program at Fulham Prison and no longer using illegal drugs. The appellant instructed his counsel at the plea that he wished to 'improve his situation' by continuing to learn English while at Fulham.
In support of Ground 2 of the grounds of appeal, the appellant submits that the sentencing judge failed to give adequate weight to the fact that the appellant was at the time of sentence in custody, having been convicted in August 2007 and therefore after the offences with which we are now concerned. The principle of totality, it was submitted and is submitted, was not directly addressed by his Honour. Nor (the submission continued) did the judge indicate how he had taken the principle into account in fixing upon the sentences he imposed.
These submissions are accurate. In his sentencing remarks, the judge did, however, refer to the August 2007 sentence, and the appellant's earliest expected date of release. In these circumstances, it must be taken that his Honour did have regard to the principle of totality unless the total period of incarceration to which the appellant has been subjected as a result of the punishments imposed in August 2007 and May 2008, is manifestly excessive. I do not think that it is.
In support of Ground 3 of the grounds of appeal, the appellant relies upon the fact that the pleas of guilty were entered in relation to each count, and were entered at the earliest possible time. He also made full admissions. I accept that this so, and it is a matter that must be taken into account in the appellant's favour. Another factor of relevance is that he has no prior convictions for offences involving violence, or for aggravated burglary. His age, his lack of English, and his poor health will make, and doubtless have in the past made, prison harder for him than for others. One must sympathise, too, with the considerable difficulties which have dogged his life.
Otherwise, however, there is little which ameliorates the offences for which the appellant was sentenced in May 2008. It may be accepted that, albeit that he has many convictions for burglary, violence is not part of his modus operandi. But those who, ignorant of him and his intentions, are unfortunate enough to be in premises entered by him as a burglar, are not to know that. For these victims of burglary, the experience is almost certainly one which induces a particularly unpleasant and unwanted feeling of territorial and perhaps personal violation, and of significant fear, if not of terror. This must have been the case with the person inside the house at 6 Buxton Street, Footscray when the appellant entered unlawfully at 2.30 am on 10 June 2007. She was severely handicapped, and unable to defend herself against the possible violence of the intruder.
The convictions and the punishments imposed as a consequence have not deterred the appellant in the past. There is nothing more than a statement from the Bar table that, with the entry by the appellant into a methadone program, things have since changed. Each of specific and general deterrence, denunciation, and the protection of the community are in this case of particular importance in arriving at appropriate individual sentences and a total effective sentence.
Given these factors, it seems to me that the sentences imposed on 30 May 2008 were far from manifestly excessive, whether in combination or taken individually. In any event, our task is to resentence the appellant. In this context, I observe that a sentence of five years' imprisonment is only 20 percent of the maximum sentence for aggravated burglary. This, in the circumstances which obtain here, seems to me to be appropriate in respect of each of Counts 1 and 2, with the sentence on Count 1 being the base sentence, and one year of the five imposed on Count 2 being ordered to be served cumulatively with the sentence on Count 1.
These were serious examples of the offence of aggravated burglary. In each case, entry was made into residential premises in the early hours of the morning when the only conclusion could be that the appellant was recklessly indifferent of the likelihood of someone being present. It also seems to me that this is a case where the extension of mercy to the appellant, granted on many occasions to him in the past, should now come to an end. The appellant has had many opportunities to
appreciate the seriousness of his conduct and to take the steps which are open to him to ameliorate the conditions which have induced that conduct. He has not done so. Instead, he has demonstrated that previous punishments have failed to deter, just as they have failed to protect the community from him. Other measures must now be taken. In those circumstances it seems to me that the sentences which were imposed on 30 May 2008 should now be re-imposed.
MAXWELL P:
I agree and would resentence the appellant as Harper JA proposes and for the reasons which his Honour gives.
I wish only to add remarks on one related matter, that of current sentencing practices for this offence. As this Court has said more than once, aggravated burglary is an extremely serious offence. By fixing a maximum of 25 years’ imprisonment, Parliament equates the seriousness of this offence with that of rape and of trafficking in a commercial quantity of a drug of dependence.[1]
[1]See DPP v El Hajje [2009] VSCA 160, [35].
In her second reading speech on the 1997 Bill which increased the maximum penalty for aggravated burglary, [2] the then Attorney-General said:
The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The government wishes to send a message to offenders that these crimes will not be tolerated.
Under the bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.[3]
[2]Sentencing and Other Acts (Amendment) Act 1997 (Vic) (No 48 of 1997).
[3]Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873 (Jan Wade, Attorney-General).
Against that background, it is instructive to note the statistics for sentencing
for aggravated burglary, as set out in the appellant's submission and relied on by his counsel.[4] Those statistics show that, in the period 2002‑03 to 2006‑07:
[4]Sentencing Advisory Council, ‘Sentencing trends for aggravated burglary in the higher courts of Victoria, 2002‑03 to 2006‑07’, Sentencing Snapshot No 38 (December 2007).
· 642 people were sentenced for the offence of aggravated burglary;
· 45 per cent of people sentenced received a sentence of imprisonment;
· 34 per cent of people sentenced received a wholly suspended sentence of imprisonment;
· in cases where imprisonment was ordered, the principal sentence imposed ranged from three months to seven years;
· the median principal sentence of imprisonment imposed was two years;[5]
[5]Rounded to the nearest number of whole years.
· the median total effective sentence was two years and seven months;
· the most common sentence of imprisonment imposed was one year;[6] and
· where a sentence of imprisonment was imposed, 95 per cent of sentences had a length of four years or less.[7]
[6]Rounded to the nearest number of whole years.
[7]Rounded to the nearest number of whole years.
Those statistics suggest that there is a very serious question to be examined about whether current sentencing practices for aggravated burglary can be justified, in view of Parliament's clear instruction to the Courts in 1997 to sentence for this offence within parameters marked out by an increased maximum of 25 years.[8] This Court raised the same issue, in relation to the same offence, in DPP v El Hajje,[9] decided more than a year ago.
[8]As to the significance of the maximum, see R v AB (No 2) (2008) 18 VR 391, 403–4, [40]–[41].
[9][2009] VSCA 160, [33].
That is not a question which can be investigated in this proceeding but I think the community would be concerned to know that in 95 per cent of cases (in the period 2002–03 to 2006–07) where a sentence of imprisonment was imposed for this offence, the sentence was four years or less. It must be assumed that, in that period, there were some very bad instances of the offence, as well as some less serious instances. It seems remarkable that in all but five per cent of the cases, the sentences have been below 20 per cent of the maximum.
Sentencing statistics are of unique assistance in providing an overview of sentencing practice in this way. As the above analysis shows, aggregate statistics are indispensable when the general trend of sentencing for an offence needs to be identified.
On the other hand, as this case also illustrates, aggregate statistics are of little assistance where the sentencing court needs to know what kind of sentence would be imposed on a similar offender for a similar offence committed in similar circumstances. In those circumstances, as Spigelman CJ said in R v Bloomfield,[10] there will need to be (as there often is in this Court) examination of comparable cases.[11]
[10](1998) 44 NSWLR 734, 739.
[11]See, for example, DPP v DDJ (2009) 22 VR 444, 456–459 [47]–[61].
To be specific, to say that the median sentence for aggravated burglary is two years is of no assistance when the Court is dealing with an offender with a criminal record like this appellant’s. The considerations which are attracted by a record of recidivism of this kind are clearly set out in Veen v The Queen (No 2).[12] They put an offender like this into a quite different category when one comes to ask the question, ‘What is the sentencing range for this offending by this person?’
[12](1988) 164 CLR 465.
Without the constraint of current sentencing practice, a recidivist like this might well have expected a sentence for aggravated burglary a good deal higher than five years. As things stand, there is a perfectly explicable differential between
the sentence imposed on this offender and what appears to be the general run of sentences for this kind of offending. As I have said, that ground of differentiation is the need for very powerful specific deterrence of this offender and strong protection of the community against the risk which he poses.
REDLICH JA:
Because of the appellant's antecedents, protection of the community loomed large as a sentencing consideration. I am therefore not persuaded that the sentence imposed was an inappropriate sentence. For the reasons given by Harper JA, I would reimpose the sentences that were fixed at first instance.
MAXWELL P:
The order of the Court is as follows:
1. Appeal allowed.
2. The sentences of imprisonment imposed below are quashed and in lieu thereof the appellant is sentenced as follows:
On Count 1 - five years’ imprisonment;
On Count 2 - five years’ imprisonment;
On Count 3 - one year’s imprisonment;
On Count 4 - one year’s imprisonment.
3. The Court directs that one year of the sentence imposed on Count 2 and three months of the sentence imposed on Count 4 be served cumulatively upon each other and upon the sentence imposed on Count 1, making a total effective sentence of six years and three months' imprisonment.
4. We fix a non-parole period of four years.
5. It is declared that the period of 853 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
We will state in ‘Other Matters’ that, in accordance with s 14 of the Sentencing Act1991 (Vic), the non-parole period is fixed by reference both to the offences for which the appellant has been sentenced and to the offences for which he was serving sentence at the time of sentence, and commences from the date on which sentence in this proceeding was imposed.
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