Lunt v The Queen
[2011] VSCA 56
•9 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0746 |
| NOEL CLIFFARD LUNT |
| v |
| THE QUEEN |
| S APCR 2009 0748 |
| VIET HUYNH |
| v |
| THE QUEEN |
| S APCR 2010 0107 |
| DANIEL SAZDOV |
| v |
| THE QUEEN |
| S APCR 2009 0758 |
| LK |
| v |
| THE QUEEN |
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| JUDGES | NETTLE, NEAVE and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 February 2011 |
| DATE OF JUDGMENT | 9 March 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 56 |
| JUDGMENT APPEALED FROM | [2009] VSC 291 (Kaye J) |
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CRIMINAL LAW – Sentencing – Multiple youthful offenders acting in concert – Manslaughter, affray and intentionally causing serious injury – Unprovoked attack on defenceless victims – Common grounds of appeal of manifest excessiveness and parity – Additional grounds including pleas of guilty, age, parity and totality – Whether judge gave too much weight to general deterrence – Whether judge gave sufficient weight to matters of rehabilitation and remorse – Sentences imposed ranging between nine and eleven years with non–parole periods ranging between five years and six months to seven years – Minor adjustment made for one applicant for pre-sentence detention – Otherwise leave to appeal refused for all applicants.
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Appearances: | Counsel | Solicitors |
| For the Applicant Lunt | Mr C B Boyce | Theo Magazis & Associates |
| For the Applicant Huynh | Mr P J Doyle | Revill Papa Lawyers |
| For the Applicant Sazdov | Mr J P Dickinson SC | Stephen Andrianakis & Associates |
| For the Applicant LK | Mr L C Carter | Valos Black & Associates |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
These are applications for leave to appeal against sentences of imprisonment imposed on the applicants for manslaughter, and related offences of affray and intentionally causing serious injury and injury, which they committed in concert on the night of 22 February 2008.
The facts of the offending
The circumstances of the offending are recited in the judge’s sentencing remarks. The offences were committed during an incident outside some shops in Stenson Rd, Kealba at about 11.45 pm on Friday 22 February 2008. At that time, Noel Lunt was 18 years of age, LK was 16 years of age, Viet Huynh was 19 years of age and Daniel Sazdov was 20 years of age. Their offences resulted in the death of Bao Tran, who was then aged 17 years, and the infliction of serious injuries on three other victims, Andres Molina (then aged 18 years), and Maile Latu, Johnny Phan and Tien Le (who were then aged 17, 16 and 17 years, respectively).
Before the incident, the applicants were at a house in the suburb of Kealba. While there, Sazdov noticed some vehicles, including a dark grey Magna, travelling by the house on more than one occasion. Wrongly supposing that those vehicles were in some way associated with a rival gang, the applicants decided to pursue the vehicles and attack the occupants. For that purpose, LK armed himself with a small axe and Noel Lunt, Huynh and Sazdov armed themselves with a variety of weapons which included wooden hockey sticks and a cricket bat. At the instance of Noel Hunt, another co-offender (‘Azzopardi’) then drove them to some shops on Stenson Road, where the Magna had parked. Andres Molina was seated in the driver’s seat of the Magna, Maile Latu was in the front passenger seat, Bao Tran was in the rear nearside seat, Tien Le was in the rear middle seat, and Johnny Phan was in the rear off side seat behind the driver.
Azzopardi parked his car in front of the Magna and the applicants got out holding their weapons. LK had the small axe and Noel Lunt, Huynh and Sazdov each had a wooden hockey stick. So armed, they approached and violently attacked the Magna and the occupants.
LK used his axe to smash the front passenger window of the Magna and struck Maile Latu a number of blows with the axe. Then he used the axe to smash the rear passenger window of the Magna and struck Bao Tran approximately five times on the back of the head with the axe. Huynh struck Tien Le on the right temple with a hockey stick. LK struck Johnny Phan with the axe to Phan’s right chest. Noel Lunt, confronted the driver, Andres Molina, and demanded that he get out of the car. When Molina refused to do so, Noel Lunt struck Mr Molina a brutal blow on his left forearm, thereby fracturing his ulna. Huynh tried to strike Molina with his hockey stick, and hit his right shoulder.
Sazdov did not strike a blow to any of the occupants but mounted the bonnet of the Magna and kicked the windscreen and then walked around the Magna. During the remainder of the attack, he at first went back to Azzopardi’s car and then returned to the Magna so as to aid and abet the attack. Azzopardi, however, remained in his car throughout the attack and played no part in it.
After some time, some of the applicants decided to leave and, at much the same time, Huynh called out to LK to stop hitting the victims with the axe. But Noel Lunt said that he would not leave until Molina got out of his car, and the judge found that Noel Lunt also yelled out for someone to get a knife from Azzopardi’s car. At that point, another vehicle drove past, which had the effect of distracting Noel Lunt’s attention, and that enabled Mr Molina to start the Magna and drive away from trouble.
By then, Tien Le and Bao Tran were both badly injured and unconscious. Mr Molina drove them directly to the Sunshine Hospital where they were admitted to the Emergency Department. Bao Tran was found to be suffering from grave head injuries, including a compressed fracture of the skull and consequential intracranial haemorrhage, and was later transferred to the Royal Melbourne Hospital. Although surgeons operated in an attempt to save him, his condition deteriorated during the ensuing week and he died.
After the Magna escaped from the incident, the applicants got back into Azzopardi’s car and returned to the house. While there, they noticed a Suzuki motor car drive past, which they thought to be associated with the Magna. They and one David Drodrolagi then pursued the car. Noel Lunt, Andrew Azzopardi, Sazdov and Drodrolagi were arrested while they were endeavouring to attack the car. LK and Huynh fled from the scene, but were arrested the next day.
Bao Tran died on 29 February 2008. Andres Molina suffered a fracture to the left arm at the elbow, which required surgical intervention. The other three occupants of the Magna, Maile Latu, Tien Le and Johnny Phan all sustained physical injuries. As a result of the trauma associated with the incident, Mr Phan suffered a severe psychiatric reaction, which has disabled him from working. Mr Phan was the best friend of Bao Tran, and, as the judge observed, his victim impact statement describes the depth of grief suffered by him as a result of the loss of his close and good friend.
The sentence
The judge sentenced each applicant as follows:
Viet Huynh
| Offence | Individual sentence | Cumulation |
| Count 1 (Affray) | 3 years’ imp | |
| Count 2 (Int’ cause serious injury to Andres Molina) | 5 years’ imp | 12 months’ imp |
| Count 3 (Int’ cause injury to Maile Latu) | 2 years’ imp. | 4 months’ imp |
| Count 4 (Int’ cause injury to Johnny Phan) | 2 years’ imp | 4 months’ imp |
| Count 5 (Int’ cause injury to Tien Le) | 2 years’ imp | 4 months’ imp |
| Count 6 (Manslaughter of Bao Tran) | 9 years’ imp | 9 years’ imp (Base) |
| Total effective sentence Non-parole period | 11 years’ imp. 7 years. |
Noel Lunt
| Offence | Individual sentence | Cumulation |
| Count 1 (Affray) | 3 years’ imp | |
| Count 2 (Int’ cause serious injury to Andres Molina) | 5 years’ imp | 12 months’ imp |
| Count 3 (Int’ cause injury to Maile Latu) | 2 years’ imp. | 4 months’ imp |
| Count 4 (Int’ cause injury to Johnny Phan) | 2 years’ imp | 4 months’ imp |
| Count 5 (Int’ cause injury to Tien Le) | 2 years’ imp | 4 months’ imp |
| Count 6 (Manslaughter of Bao Tran) | 9 years’ imp | 9 years’ imp (Base) |
| Total effective sentence Non-parole period | 11 years’ imp. 7 years. |
LK
| Offence | Individual sentence | Cumulation |
| Count 1 (Affray) | 2 years’ imp | |
| Count 2 (Int’ cause serious injury to Andres Molina) | 4 years’ imp | 6 months’ imp |
| Count 3 (Int’ cause injury to Maile Latu) | 2 years’ imp. | 2 months’ imp |
| Count 4 (Int’ cause injury to Johnny Phan) | 2 years’ imp | 2 months’ imp |
| Count 5 (Int’ cause injury to Tien Le) | 2 years’ imp | 2 months’ imp |
| Count 6 (Manslaughter of Bao Tran) | 9 years’ imp | 9 years’ imp (Base) |
| Total effective sentence Non-parole period | 10 years’ imp. 6 years. |
Daniel Sazdov
| Offence | Individual sentence | Cumulation |
| Count 1 (Affray) | 2 years’ imp | |
| Count 2 (Recklessly cause serious injury to Andres Molina) | 3 years and six months’ imp | 6 months’ imp |
| Count 3 (Recklessly cause injury to Maile Latu) | 18 months’ imp. | 2 months’ imp |
| Count 4 (Recklessly cause injury to Johnny Phan) | 18 months’ imp | 2 months’ imp |
| Count 5 (Recklessly cause injury to Tien Le) | 18 months’ imp | 2 months’ imp |
| Count 6 (Manslaughter of Bao Tran) | 8 years’ imp | 8 years’ imp (Base) |
| Total effective sentence Non-parole period | 9 years’ imp 5 years and 6 months. |
Grounds of appeal – Noel Lunt
Ground 4 – Plea of guilty
Under Ground 1 of his application, Noel Lunt complains that the judge failed to give sufficient weight to his plea of guilty and to mitigate sentence accordingly, particularly in the case of Counts 1, 2 and 6.
Counsel for Noel Lunt based the contention on the judge’s s 6AAA declaration[1] that, but for Noel Lunt’s plea of guilty, his Honour would have sentenced Noel Lunt on Count 1 to 3 years’ imprisonment, on Count 2 to six years’ imprisonment, on Counts 3, 4 and 5 to three years’ imprisonment, and on Count 6 to 10 years’ imprisonment, and would have cumulated 18 months of the sentence imposed on Count 2, six months of each of the sentences imposed on Counts 3, 4 and 5 on each other and on the sentence imposed on Count 6, making for a total effective sentence of 13 years’ imprisonment with a non-parole period of nine years.
[1]Sentencing Act 1991, s 6AAA.
Counsel submitted that the fact that the sentence which his Honour said he would have imposed on Count 1 in the absence of the plea of guilty was the same as the sentence which he imposed on that count following the plea of guilty, was enough in itself to show that the judge had wholly failed to take the plea of guilty into account in relation to Count 1. Further, in counsel’s submission, the fact that the reductions which the judge declared that he had allowed for the pleas of guilty on the other individual counts were ‘very modest’, showed that his Honour did not give the plea the weight which it warranted on those counts. In particular, in counsel’s submission, the reduction of only one year on a s 6AAA sentence of six years (on Count 2) and, a fortiori, a reduction of only one year on a s 6AAA sentence of 10 years (on Count 6), demonstrated that the judge had wholly underestimated the mitigatory significance of the plea.
I do not accept that submission. In my view, it faces the difficulty, considered by Maxwell P and Buchanan JA in R v Scerri,[2] that the discount allowed on a plea of guilty is not as such examinable for specific error. As their Honours held, although a declaration of discount may be indicative of underlying error, the right of appeal is a right of appeal against sentence. A s 6AAA declaration is not part of a sentence. It is a declaration dehors the sentence of another sentence which might have been imposed in the absence of a plea of guilty.
[2][2010] VSCA 287, [23].
It follows that the question for present purposes is not so much whether the declared s 6AAA discount was adequate, as whether the sentence and non-parole period which were imposed were excessive;[3] and in that connection, as we said in Ciantar v R,[4] it is necessary to bear in mind that:
while part of any discount for a plea of guilty is intended to reflect the utilitarian value of avoiding the time and cost of a trial, another aspect of it relates to the extent to which the plea may be taken to manifest the offender’s remorse, acceptance of responsibility and willingness to facilitate the course of justice. Although it has been held that the utilitarian value of a plea of guilty is not affected by the strength of the Crown case,[5] the strength of a Crown case may cast doubt on the extent of an offender’s remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice[6] and so result in a lesser discount than one would otherwise suppose...[7]
[3]R v Howard [2009] VSCA 281, [15].
[4][2010] VSCA 313, [30]–[32].
[5]R v Pajic (2009) 23 VR 527, 532 [20].
[6]Cameron v The Queen (2002) 209 CLR 339, 346 [22].
[7]Siganto v The Queen (1998) 194 CLR 656, 663–4 [22]–[23]; R v Thomson; R v Houlton (2000) 49 NSWLR 383, 412 [118].
For reasons to which I shall come, I am not persuaded that any of the individual sentences, total effective sentence or non-parole period were manifestly excessive.
Ground 3 – Double punishment
Under the heading of Ground 3, counsel for Noel Lunt contended that, although the judge ordered that the sentence imposed on Count 1 be served wholly concurrently with the sentences imposed on the other counts, his Honour failed to reduce the individual sentence imposed on Count 1 to account for the fact the affray the subject of Count 1 was comprised in part of the offences the subjects of Counts 2, 3, 4 and 5.
I do not accept that contention either. To the contrary, what I regard as the merciful individual sentence of only three years’ imprisonment imposed on Count 1 implies that the judge discounted the individual sentence imposed on Count 1, before ordering that it be served wholly concurrently with the sentences imposed on the other counts, in order to ensure that the applicant was not doubly punished for such of the elements of the affray as were comprised in the other offences. In my view, the way in which his Honour approached the matter accords with Pearce v R.[8]
[8](1998) 194 CLR 610, 623–624 [45]–[48].
Accordingly, I reject Ground 3.
Grounds 7 and 9 – The applicant’s exhortations that the assault cease and the applicant yells out for a knife
The argument advanced under Ground 9 was that, in the way in which the plea was conducted, it was not open to the judge to find that Noel Lunt called out for someone to get a knife from Azzopardi’s car.
Counsel for Noel Lunt submitted that, although that impugned fact was stated in Mr Molina’s deposition, the prosecutor did not open it as a fact and, when the judge asked defence counsel during the plea whether Noel Lunt was the offender who called for the knife, defence counsel replied that ‘on instructions’ he took issue ‘with that aspect’. Counsel for Noel Lunt contended that, in those circumstances, it was not open to the judge to find the impugned fact unless it were established by evidence beyond reasonable doubt – because it was a ‘nasty fact’ which had the capacity to reflect very poorly on the applicant’s moral culpability and because it undercut the applicant’s case that he desired the other offenders to stop the attack and he told them so – and that it was not so established. Alternatively, counsel submitted, if there were material sufficient to establish the impugned fact beyond reasonable doubt, it was a denial of natural justice for the judge to make the finding without giving counsel an opportunity to persuade the judge to the contrary. Since the Crown did not open the fact, and nothing was said after defence counsel took issue with the judge’s suggestion, defence counsel was entitled to assume that his position had been accepted.
I do not accept that the judge was in error in finding that Noel Lunt called out for a knife. In my view, his Honour was entitled to make findings of fact on the basis of the sworn depositions, unless there were reason to doubt the accuracy of what was said, and none has been suggested. I also do not accept that there was any denial of natural justice. The judge gave defence counsel an opportunity to put his position in opposition to the matters to which Mr Molina had deposed and counsel offered nothing apart from the statement that on his instructions he took issue with that aspect.
Even if I am wrong about that, however, the judge accepted that Noel Lunt ‘called out to LK to stop hitting the occupants of the Magna with the axe’. Thus, whatever significance the judge may have attributed to Noel Lunt’s call for a knife, and from his sentencing remarks his Honour does not appear to have attributed any significance to it other than as a background fact, his Honour plainly did not regard it as undercutting Noel Lunt’s case that he desired the other offenders to stop the attack and he told them so. It follows that, if there were any error in making the finding, and I do not accept there was, I would regard it as immaterial.
Ground 8 – Assessment of Noel Lunt’s role
The burden of Ground 8 is that the judge erred in his assessment of Noel Lunt’s moral culpability.
The judge proceeded on the basis that, by their pleas of guilty, Noel Lunt and Huynh:
have correctly admitted that [LK] was acting in concert with you, and thus you are each equally responsible for the unlawful killing of Bao Tran.
Counsel for Noel Lunt contended that for the judge so to proceed showed that his Honour paid insufficient regard to what counsel described as ‘the differing levels of intent that must have been in existence as between the co-offenders.’ Counsel accepted that the judge countenanced a greater level of culpability on the part of LK, on the basis that LK struck the fatal blows. But, counsel submitted, his Honour made no other allowance for the differences between Noel Lunt’s and LK’s respective roles.
I do not think that submission is persuasive either. It was admitted that Noel Lunt acted in concert with LK in the unlawful and dangerous act killing of Bao Tran. The judge was right, therefore, to approach the matter on the basis that both of them intended that Bao Tran be subjected to an unlawful and dangerous act, albeit that neither of them intended that he be killed.[9] The judge allowed for the fact that LK was to some degree more culpable that Noel Lunt, inasmuch as LK struck the blows which killed Bao Tran, and that Noel Lunt was to some extent more culpable than LK, inasmuch as Noel Lunt was older. Otherwise, however, as the judge rightly conceived, Noel Lunt and LK were more or less equally culpable. Noel Lunt directed Azzopardi to drive his car after the Magna and to park in front of it. Noel Lunt armed himself with a hockey stick, attacked the Magna with it, attacked the driver and passenger and then prevented the driver from leaving. The logical
inference, as the judge concluded, was that both LK and Noel Lunt intended that the car be attacked and the occupants beaten as they were.
[9]Otherwise, the offence would have been murder.
Ground 6 – Parity
Although Ground 6 was put forward as a separate ground of appeal, it is in substance a repetition of the complaint made under Ground 8.
Counsel submitted that the imposition on Noel Lunt of the same total effective sentence, non-parole period, and individual sentences on Counts 1 and 6 as were imposed on LK infringed the parity principle,[10] given that LK’s prior convictions involved violence (whereas Noel Lunt’s did not); was overall more violent during the course of the attack; and struck the blows that killed Bao Tran and the blows that constituted Counts 3 and 4. Counsel also prayed in aid, again, the idea that Noel Lunt’s intent was at a different and lower level to LK and called for a comparatively lower sentence, given that LK was the main aggressor throughout the attack and, insofar as the activity of all offenders constituted an affray, LK was the greatest proponent of fear. In those circumstances, counsel submitted, it was simply not open to the sentencing judge to impose a lesser sentence for the affray on LK than was imposed upon Noel Lunt.
[10]Lowev R (1984) 154 CLR 606, 610–611 (Mason J).
I reject the first part of that argument, for the reasons I have given for rejecting Ground 6. Despite such differences as there may have been between the nature of blows inflicted by Noel Lunt and of the blows inflicted by LK, the judge was right to treat the culpability of the two offenders as more or less comparable. As to the second aspect of the argument, the judge made clear that his reason for imposing a greater sentence on Noel Lunt than LK was because Noel Lunt was older. I see no error in that. As the judge took care to point out, Noel Lunt had two prior appearances in the Children’s Court, one for procuring sexual penetration by threats or intimidation and the other for dishonesty offences, whereas LK had only one prior appearance in the Children’s Court in relation to a charge of armed robbery and robbery. Noel Lunt was almost 19 at the time of the affray, and was dealt with as an adult. In contrast, LK was only 16 and was dealt with as a child. In the result, as it appears to me, the judge’s weighting and synthesis of the various competing sentencing considerations with which he was concerned was well within the ambit of a sound exercise of his Honour’s sentencing discretion.
Ground 5 – Age
Under Ground 5, counsel for Noel Lunt submitted that the judge erred in tempering the mitigative force of Noel Lunt’s youth by having regard to the fact that there are other young people who, like Noel Lunt, come from broken homes and disadvantaged circumstances but, unlike Noel Lunt, do not offend in the appalling manner which he did. As his Honour put it:
I do accept that the youth of the three of you, and in particular you, LK, is relevant as to the level of your culpability. Persons of your young age do not have the benefit of the same maturity and judgment as an older person might have. However, your immaturity is no excuse, nor indeed an appropriate explanation, for your conduct on that night. There are very many adolescents in our society who have had a less advantaged upbringing than you, and who also come from broken homes, who would not think for one instant of being involved in the type of conduct that the three of you indulged in.[11]
In counsel’s submission, the judge thereby paid regard to an irrelevant consideration which vitiated his Honour’s exercise of the sentencing discretion.
[11]Sentencing Remarks, [41].
I do not accept that submission. As I read the impugned passage of his Honour’s remarks, his Honour was simply making the point that, while it was necessary to make some allowance for Noel Lunt’s deprived personal circumstances, the appalling nature of the offences meant that such allowance as could be made had to be limited. I agree with his Honour. In my view, he was right to assess the mitigative weight to be attributed to Lunts’ dysfunctional upbringing by reference to the usual mode of behavior of other young people burdened by similar disadvantages. It was the closest and most relevant comparator and in effect the only logical way to go about the process.
Grounds 1 and 2 – Manifest excessiveness and totality
Finally, under the heading of manifest excessiveness, counsel for Noel Lunt argued that the individual sentences and total effective sentence were manifestly excessive in view of Noel Lunt’s age, dysfunctional upbringing, good work history, community minded work with sporting clubs, steps taken towards rehabilitation, remorse and insight and the negative effects of incarceration in adult prison.
I do not accept that contention either. As the judge explained, the nature of Noel Lunt’s offences was such that the objective of rehabilitation had to be balanced to some extent against the demands of denunciation, deterrence and just punishment. In his Honour’s words:
Reference was made to the principle that, in general, it is in the public interest that the rehabilitation of young offenders be given primacy in the sentencing process. In particular, the law recognises that it is to the community’s benefit that young offenders be sentenced in a manner which will enhance their rehabilitation into society.
However, that principle does not invariably operate as an absolute proposition. In particular, there are cases in which the considerations of the youth of the offender and his rehabilitation, while still important, nevertheless must be properly balanced by the need for the court to impose a sufficiently strict sentence, in order to operate as a general deterrent, and as a specific deterrent to the particular offenders. In my view, this is such a case. As I have already stated, the unlawful killing by the three of you of Bao Tran constitutes a particularly serious instance of the crime of manslaughter. As a whole, the conduct of the three of you in the incident in which Bao Tran was killed, and the other four occupants of the Magna injured, was characterised by gratuitous, vicious and cowardly violence on your behalf. Regrettably, that type of conduct is all too prevalent in our society, although, as I have stated, this case is perhaps a more extreme instance of such a phenomenon. It is most important, in the public interest, that courts impose sufficiently severe sentences, so as to adequately express the outrage and condemnation of the community and the law at your behaviour, and to send a clear message that the type of conduct in which the three of you saw fit to engage on that night simply will not be tolerated in any way, shape or form. Those who see fit to indulge in the type of vicious and wanton violence which characterised your offending must be left in no doubt that, when apprehended, they will suffer a substantial and lengthy loss of their freedom to live in society. In cases such as this, the court has a responsibility to impose sentences which will, in that way, provide a measure of protection to innocent and defenceless members of our community from mindless acts of violence such as occurred in this case. Those considerations, in my view, should not be sacrificed or
unduly diminished by the weight given to your rehabilitation as young offenders.[12]
[12]Sentencing remarks, [38]–[39].
With respect, I agree with his Honour’s analysis. It accords with established principle.[13] In the circumstances of this case, the sentence was not excessive.
[13]R v Thompson (Unreported, Court of Appeal, BC 9801712, 7-8, Tadgell JA, 21 April 1998); R v PDJ (2002) 7 VR 612, 629 [82]; DPP v SJK and GAS [2002] VSCA 131 [61]; R v Lawrence (2004) 10 VR 125, 132 [22]; DPP v Simpas [2009] VSCA 40, [13] and [101]–[104].
I reject Grounds 1 and 2.
Grounds of appeal – LK
Ground 5 – Plea of guilty
Counsel for LK put much the same submissions in support of his contention that the judge gave LK insufficient credit for his plea of guilty as counsel for Noel Lunt put in support of his submission that the judge gave Noel Lunt insufficient credit for his plea of guilty.
I reject them for the same reasons as I rejected the submissions put on behalf of Noel Lunt.
Ground 6 – Age and prospects of rehabilitation
The argument advanced by counsel for LK under Ground 6 was that, because LK was only 16 at the time of the subject offending and only 17 at the time of sentencing, it was manifest in the sentences imposed that the judge gave too little weight to the importance of rehabilitation in the sentencing of youthful offenders and too much weight to denunciation and deterrence.
In effect, I have already dealt with that contention, too. As I observed when dealing with Noel Lunts’ Grounds 1, 2, 5, 6 and 8, the judge gave careful consideration to the competing sentencing considerations which applied to LK and his co-offenders and explained the relative weighting which his Honour gave to them. The result to which his Honour came is within the bounds of the sound exercise of sentencing discretion.
Ground 3 – Pre-sentence detention
Under cover of Ground 3, counsel for LK submitted that the judge had erred in failing to treat a sentence of six month’s detention, which LK served in a youth justice centre for offences committed in 2007, as pre-sentence detention for the purposes of s 18 of the Sentencing Act 1991. The nub of the complaint was that LK was remanded in custody in respect of the subject offences when sentenced in the Magistrates’ Court to the period of youth detention in respect of the 2007 offences and, because so remanded, he was precluded from obtaining release on parole from the youth justice centre. In those circumstances, counsel submitted, the six months’ youth detention ought to have been counted either as pre-sentence detention pursuant to s 18 of the Sentencing Act or, if not, in the general sort of way contemplated in R v Renzella.[14]
[14][1997] 2 VR 88, 98.
It is convenient to deal first with s 18. Counsel for LK prayed in aid the decision of this court in DPP v TY (No 2),[15] that 11 months’ imprisonment served by TY between his first sentencing for murder and the subsequent quashing of his first conviction of that murder was rightly included in the calculation of pre-sentence detention under s 18 of the Sentencing Act when TY came to be sentenced following his conviction after being tried a second time for that murder. Counsel submitted that the time which LK served in youth detention in respect of the 2007 offences was in principle no different to the time which TY spent in prison serving the sentence imposed in respect of his first conviction.
[15](2009) 24 VR 705.
I do not accept that contention. In TY, the court rejected the submission made by counsel for the Crown that the quashing of the conviction for murder on appeal meant that the sentence was to be treated as if it had never existed. It was held that the whole period served by TY, from his arrest for murder until the imposition of sentence following his re-trial and conviction (except for a six week period when he was also serving a Children’s Court sentence), should be taken into account as pre-sentence detention. Consistently, however, with the decision of this court in R v Broad,[16] the court accepted that the six week period referable to the Children’s Court sentence did not count as pre-sentence detention.
[16][1999] 3 VR 31.
Broad held that a period spent on remand for one offence could not be taken into account as pre-sentence detention in relation to that offence if the offender were serving a sentence for another offence at the same time.[17] Parity of reasoning implies that the period during which LK was on remand for the offences to which this appeal relates, while he was also serving the period of youth detention imposed by the Magistrates’ Court, cannot be taken into account as pre-sentence detention.
[17]This was despite the fact that the words ‘ for no other reason’ were no longer included in s 18(1) of the Sentencing Act 1991. Brooking JA, with whom Tadgell and Chernov JJA agreed, said that the reason for removal of those words was to deal with the situation where a person was detained under two remand warrants. Subject, however, to an exception which is not relevant here, his Honour stated that ‘ss 18(1) and 35(1) are inapplicable to periods of detention during which the person sentenced was serving a sentence’.
I accept, however, that the period of six months should have been taken into account by the judge in the exercise of discretion in accordance with Renzella, and that it appears that his Honour did not so take it into account. Defence counsel told the judge that enquiries were being made as to whether LK had served four or six months’ detention, but then never reverted to the subject. In those circumstances, I infer that his Honour concluded that the matter was not being pursued.
That does not foreclose the issue, however, because it is clear now that the issue is being pursued, and it is accepted that LK did serve six months. Through no fault of the sentencing judge, LK was deprived of the opportunity of having that six months taken into account. I would, therefore, take it into account and, in the exercise of discretion, give credit for it to the extent of reducing LK’s non-parole period by three months.
I add for completeness that, during the course of submissions in reply, counsel for Noel Lunt argued that, if this court made any adjustment to LK’s sentence to allow for the six month period of detention in accordance with Renzella, it would be necessary to set aside the sentences imposed on Noel Lunt and re-sentence him to reduced sentences, so as to accord him parity.
I disagree. Making allowance for the six month period, which is unique to LK, in no way affects the appropriateness of the individual sentences, total effective sentence or non-parole period imposed on Noel Lunt. To the contrary, to reduce Noel Lunt’s sentence by reference to the six month period would be productive of a degree of disparity about which LK might be entitled to harbour a justified sense of grievance.
Ground 4 – Double punishment
Under Ground 4, counsel for LK adopted the submissions put by counsel on behalf of Noel Lunt in support of his contention that the judge had doubly punished Noel Lunt for the count of affray. For the reasons already given, I reject those submissions.
I reject Ground 4.
Ground 2 – Totality
Counsel for LK contended, under Ground 2, that the individual sentences and total effective sentence imposed in LK offended the totality principle and, in support of that contention, he relied on the submissions advanced under Ground 3. On that basis, he argued that the presumption of continuity ought to have run much further.
For the reasons given when dealing with Ground 3, I reject that contention and, therefore, I reject Ground 2.
Ground 1 – Manifest excessiveness
Finally, under the heading of Ground 1,[18] it was submitted, on the basis of the considerations advanced in support of the other grounds, that the individual sentence and total effective sentence imposed in LK were manifestly excessive.
[18]Ground 7 was abandoned.
For the reasons already given, I reject that submission, too.
Grounds of appeal – Viet Huynh
Ground 1 – Manifest excessiveness
Counsel for Viet Huynh argued in support of Ground 1 of Huynh’s application that, when the sentence of nine years’ imprisonment imposed on Huynh on Count 6 is compared to the median and average sentence for manslaughter as calculated in the sentencing snapshot for the period 2002–3 to 2006–7, and with individual sentences in other cases (which in that period ranged between two years and fifteen years’ imprisonment), it is apparent that the sentence of nine years’ imprisonment imposed on Huynh is manifestly excessive for an offender of only 19 years of age.
I do not accept that contention. As the judge observed, the unlawful killing of Bao Tran was a particularly serious incident of the crime of manslaughter characterised by gratuitous, vicious and cowardly violence. It called for a sentence adequate to express outrage and condemnation and send a clear message that offending of that kind will not be tolerated in any shape or form. That being so, it was not possible to give the same weight to Huynh’s youth and rehabilitation as it might be in other circumstances.
I accept that for an offender of Huynh’s youth, a sentence of nine years’ imprisonment is indeed a stern sentence. But that is not a sufficient basis for this court to intervene.[19] In the circumstances which obtain in this case, I am not persuaded that a sentence of nine years’ imprisonment is beyond the range.
[19]Lowndes v R (1999) 195 CLR 665, 669–670 [15]; Dinsdale v R (2000) 202 CLR 321, 325 [3], [4].
Ground 2 – Youth and punishment
The submissions advanced under Ground 2 really take the matter no further. Counsel for Viet Huynh argued that the youth of an offender should be the primary consideration in sentencing, and that the judge had overemphasised the weight to be given to the punitive aspects of the sentencing process. Further, in counsel’s submission, although the judge was right to describe the unlawful killing of Bao Tran as serious, it was not as serious as the sort of offending in GAS and SJKv R[20] and, therefore, did not warrant a sentence of the order imposed in that case.
[20](2004) 217 CLR 198.
I have dealt already with the balance which the judge was required to strike between youth and rehabilitation on the one hand and the need for denunciation, deterrence and just punishment on the other. In principle, the result to which his Honour came accords with GAS and SJK. It is true that the sentence of six years’ imprisonment for manslaughter imposed in GASand SJK was less than the nine years’ imprisonment imposed in this case. It may also be that GAS and SJK involved a more serious example of manslaughter that the offence in this case; although, if it did, the difference is marginal. According to any reasonable view of the matter, both offences were appalling. More importantly, however, sentencing practices for manslaughter are now significantly different to those which applied when GAS and SJK was decided.[21] Judged according to current conceptions, a sentence of nine years’ imprisonment for an offence of the nature and gravity of the manslaughter committed in this case was within the range.
[21]See R v AB (No 2) (2008) 18 VR 391.
Ground 3 – Prospects of rehabilitation
The submission advanced under Ground 3 was that the judge failed to give sufficient weight to Huynh’s prospects of rehabilitation.
I do not accept that was so. The judge referred to all of the matters pertinent to rehabilitation which were put in support of Huynh’s plea in mitigation of penalty and stated that he took them into account. For the reasons already considered, his Honour was entitled to conclude that they warranted less weight in this case than they might in some other cases.
Ground 4 – Assessment of remorse
The complaint under Ground 4 was that there was no basis in the evidence to support the judge’s conclusion that Huynh had demonstrated remorse only to a limited extent. The submission was based upon the following passage of his Honour’s sentencing remarks:
In sentencing each of you, I also take into account your pleas of guilty. In doing so, I accept that each of you offered to plead guilty at a relatively early stage of the proceeding, so that the committal was, in effect, unopposed. That plea, in each case, is of utilitarian value, and it is in the community’s interest that those who have committed offences publicly acknowledge them by pleading guilty to them. In addition, I accept that, at least to a limited extent, you have each displayed some remorse for your conduct. It is difficult on the materials for me to assess the depth and sincerity of the remorse which you have each expressed. However, in mitigation, I am prepared to accept that you have at least each developed some insight into the wrongfulness of your actions, and into the suffering which you have occasioned, particularly to the family of Bao Tran. That insight and that remorse gives some hope for the eventual rehabilitation of the three of you. The courses which you have each undertaken while in custody, and the therapy which you, LK, have undergone, also provide some cause to hope for your rehabilitation. It is in the best interests of the three of you that you continue to take those positive steps, and to use your time in custody to better yourselves.[22]
[22]Sentencing Remarks, [44] (emphasis added).
Contrary to counsel’s submission, it appears to me that there was a sound basis in the evidence for the judge to express a qualified view as to Huynh’s prospects of rehabilitation. As his Honour had recounted earlier in his sentencing remarks, that evidence was as follows:
In support of your plea, your counsel tendered a report of Mr Warren Simmons, a psychologist, who interviewed you at Port Philip Prison on 12 June 2009. In that report, Mr Simmons noted that since you had been shown photographs of Mr Tran, you have experienced nightmares about your victim, in which you have seen his face and his body. You told Mr Simmons that you think about Mr Tran quite often. Mr Simmons stated that you expressed some remorse for your actions, and that you displayed some empathy for the victim’s family. Mr Simmons considered that your expressions of remorse were sincere, and he is of the view that you have the capacity to understand the impact which your actions have had on other people. Mr Simmons concluded by noting that you do not have marked traits of an anti-social personality, and to that extent you have the potential to rehabilitate yourself and take advantage of the opportunities available to you while you are in prison.
On the other hand, it is a matter of concern that you have come before the courts on five previous occasions. Of particular significance is that on 7 August 2007, you were granted a community based order for 12 months, on charges of causing serious injury recklessly and causing injury intentionally. Further, on 19 September 2007, you had come before the Children’s Court at Melbourne on charges of armed robbery and robbery, and those proceedings had been adjourned without conviction for a period of 12 months, upon you entering into a bond to be of good behaviour. The offences, in which you were involved in this case, occurred during the currency of both the community based order and the adjourned bond. By flouting the terms of those non-custodial orders, you displayed a substantial lack of respect for the law, and, in doing so, treated with contempt the leniency which had been extended to you for the purposes of your rehabilitation.
Self-evidently, it is difficult to assess the prospects of rehabilitation on the basis of material as limited as that which was before the judge. I agree with his Honour, therefore, that, all things considered, one could not be confident that it established much more than that Huynh had some prospects of rehabilitation. Despite the apparently unqualified terms in which Mr Simmons chose to advance his prognosis, Huynh’s background, previous offending and negative response to previous lenient sentencing dispositions bespoke deep, long-term behavioural problems which the judge was entitled, if not bound, to conclude reflected adversely on Huynh’s prospects of rehabilitation.
Accordingly, I reject Ground 4.
Ground 5 – Finding of premeditation
In assessing the nature and gravity of Huynh’s offending, the judge observed that:
The offences, to which each of you have pleaded guilty, are particularly serious. The attack, which you launched on the occupants of the Magna, was characterised by an appalling degree of violence and savagery. The occupants of the Magna, the innocent victims of your wanton violence, gave you no cause or reason to attack them. Your assault on them was entirely unprovoked and without any justification at all. Those of you who physically participated in it — you, Huynh, Noel Lunt and LK — were armed and had the advantage of surprise over your victims. The occupants of the Magna were unarmed, and they had no opportunity to defend themselves or to escape. The attack by you on them was as cowardly as it was vicious.
It is also clear that the attack was not the product of a sudden outburst of temper or anger. Rather, you were each bent on violence when you departed the premise at Driscoll’s Rd, and you had armed yourselves for that purpose. Although the distance from those premises to Stenson Rd is quite short, you each had ample time to come to your senses, and to withdraw from your violent intentions. Indeed, even after your vehicle stopped outside the shops in Stenson Rd, there was no cause for you to proceed with your plan. The fact that the attack was, in that way, pre-meditated, is an aggravating and serious feature of your offending.[23]
[23]Sentencing Remarks, [10] and [11] (emphasis added).
The complaint made under Ground 5 is that the judge erred in so finding that the offending was premeditated, and then taking premeditation into account as an ‘aggravating and serious feature’ of the offending, without first giving defence counsel the opportunity to make submissions on the point.
I do not consider that there is any substance in that contention. Although defence counsel submitted on the plea that there had not been ‘a great deal of planning’, he accepted that ‘this was not a random attack without any lead up’. He was right to do so. There was considerable lead up to the offending. There was ample time in the car on the way to the shopping centre for Huynh to recant and desist. As the evidence showed, there was also a substantial period of time after Azzopardi’s car pulled up at the shopping centre before the applicants got out. Then they got out armed and forthwith began the attack in systematic fashion. Plainly, the judge was not wrong to characterise the offending as at least to that extent premeditated.
Grounds 6 and 7 – Parity and level of culpability
Counsel for Huynh submitted in support of Ground 6 that the judge had offended the parity principle by imposing a higher head sentence and non-parole period on Huynh than on LK.
That submission fails here for similar reasons to those which applied in the case of Noel Lunt. LK was sentenced as a child and Huynh was sentenced as an adult. LK had one prior appearance in the Children’s Court on counts of robbery and armed robbery, compared to Huynh’s four appearances in the Children’s Court, of which one was for armed robbery and robbery, and one appearance in the Magistrates’ Court for offences of violence. Like LK, Huynh was heavily involved in the offending. He got out of Azzopardi’s car, armed with a hockey stick and set about attacking the Manga and then some of its occupants while his co-offenders attacked the other occupants. He smashed the windows of the Magna, attacked the driver and broke his arm and then attacked one of the other occupants. The logical inference, as the judge concluded, was that both LK and Huynh intended that the car be attacked and the occupants beaten. The judge allowed for the fact that LK was to some degree more culpable, inasmuch as LK struck the blows which killed Bao Tran. But as his Honour observed, Huynh was to some extent more culpable than LK, because Huynh was older. Subject to that, his Honour was right to conclude that LK and Huynh were equally culpable.
Ground 8 – Contempt for previous merciful dispositions
Under the heading of Ground 8, it was contended that the judge erred in finding that, by ‘flouting the terms of [previous] non-custodial orders’, Huynh had ‘treated with contempt the leniency’ previously extended to him for the purposes of his rehabilitation. Counsel for Huynh submitted that, since neither the circumstances of the earlier offending nor the circumstances of the community based orders which had been imposed were before the judge, the judge should not have made any finding of the kind which he did without first affording defence counsel an opportunity to make submissions on the point.
That submission does not withstand analysis. The circumstances of Huynh’s previous offending were put to the judge by the prosecutor, without objection. They were that Huynh appeared before the Children’s Court on three occasions between 6 June 1005 and 12 September 2002 and then before the Magistrates’ Court on 7 August 2007 on two charges of recklessly causing injury and intentionally causing injury for which he was sentenced to a community based order. Then, a month later, he appeared before the court again for armed robbery and was given a bond for 12 months. Then, during the currency of the bond, he committed the subject offences on 22 February 2008.
The prosecutor submitted on the plea that, in view of those facts and the psychological report which was tendered by defence counsel in support of Huynh’s plea, Huynh’s actions on the night showed a complete disdain for the law and one of extreme violence. The psychological report bore that out. It stated, among other things, that:
In discussing these matters with Mr Huynh, he went on to state that he feels he had been poorly dealt with by having no convictions recorded and in his early years, leaving court with what he considered to be little more than a slap over the wrist. He stated that it was only when he received the Community Based Order that he started to understand the seriousness of his behaviour and said that he did not engage in the types of behaviour that he had been engaging in before.
With respect, I agree with the judge’s description of Huynh’s attitude as one of contempt for the leniency with which he had previously been treated. It can be seen not only in his commission of the subject offences, but also in his statements to the psychologist that he had no regard for the manner in which he had been dealt with in the past.
I reject Ground 8.
Ground 9 – Totality
Finally, under the heading of Ground 9, it was contended on behalf of Huynh that the sentence imposed on him offended the principle of totality.
I reject that contention. I agree with the judge that, in view of the nature and gravity of the offending and the applicant’s moral culpability, the sentence which his Honour imposed was not an excessive punishment.
Grounds of appeal – Daniel Sazdov
Ground 1 – Manifest excessiveness
Under cover of Ground 1, counsel for Sazdov contended that the individual sentences and total effective sentence imposed on him were manifestly excessive having regard to Sazdov’s age, remorse, prospects of rehabilitation, abstinence from drink and drugs and position of trust in gaol as a prison billet. Counsel also prayed in aid the same sentencing snapshot as was relied on by counsel for Huynh.
Those submissions are not persuasive. I have explained already the limited utility of the sentencing snapshot and it is unnecessary to repeat what I have said about it. As to the remainder of the submissions, the judge expressly took into account all of the other mitigatory considerations urged in Sazdov’s favour and, given the nature and gravity of the offending, and the consequent need for general deterrence and denunciation to which the judge referred,[24] it appears to me from the sentence imposed that his Honour has made due allowance for those mitigatory factors.
[24]Sentencing remarks, [19].
Ground 2 – Plea of guilty
Under the heading of Ground 2, counsel for Sazdov contended that the judge erred in failing to accord the same weight to Sazdov’s plea of guilty as his Honour accorded to the pleas of the other applicants. Counsel contended that, because the judge declared for the purposes of s 6AAA of the Sentencing Act 1991 that, but for Sazdov’s plea of guilty, his Honour would have imposed a sentence of two years’ imprisonment on the count of affray, it was manifest that the judge had not made due allowance for Sazdov’s plea of guilty.
That submission faces the same difficulties as the comparable submission advanced on behalf of Noel Lunt. I reject if for the same reasons that I rejected it in his case. In view of the decisions to which I then referred, I regard the question for present purposes as being not so much whether the declared discount, when expressed as a percentage of the sentence was adequate, as whether the sentence and non-parole period at which the judge arrived were excessive.[25] For the reasons already expressed, I do not accept that it was.
[25]R v Howard [2009] VSCA 281, [15].
Ground 3 – Youth
Counsel put forward as Ground 3, but in effect as a further particular of manifest excessiveness, that the judge failed to have sufficient regard to Sazdov’s youth and that his Honour had allowed considerations of deterrence and denunciation to swamp the sentencing process.
In substance, that submission is the same as those put on behalf of Noel Lunt and Huynh as to the weight which the judge had accorded their youth. In the same way, it faces the difficulty that because of the very serious nature of the offending in this case, and the consequent need for general deterrence and denunciation, there was less room for youth and prospects of rehabilitation as sentencing considerations than might otherwise be the case. In any event, I am not persuaded that the judge failed to have sufficient regard to Sazdov’s youth.
Ground 4 – Prospects of rehabilitation
The complaint under Ground 4 is that the judge failed to make a specific finding as to Sazdov’s prospects of rehabilitation and thereby failed to take them into account or give them sufficient weight.
I do not accept that submission. The judge made detailed reference to the factors which were submitted to militate in favour of Sazdov’s prospects of rehabilitation, and accepted them, and his Honour expressly referred in that context to the importance of prospects of rehabilitation as a sentencing consideration,
particularly in the case of a young offender.[26] But, as the judge also stressed, as his Honour had done in the case of the other applicants:
On the other hand, as I observed in sentencing your co-accused, in cases such as this, while your youth [which in context was evidently intended to embrace prospects of rehabilitation] is an important factor, it must be properly balanced by the need to impose a sufficiently strict sentence, in order to serve as a general deterrent to potential offenders, and a specific deterrent to yourself.[27]
[26]Sentencing remarks, [24]–[28].
[27]Sentencing remarks, [28].
I reject Ground 4.
Grounds 5 and 6 – Parity and culpability and involvement
Finally, under the heading of Grounds 5 and 6, counsel for Sazdov submitted that, in view of the judge’s findings that Sazdov did not initiate the attack and did not strike any of the victims, and thus that his level of involvement and culpability was distinctly less that that of the other applicants, there should have been a much greater difference between the sentence imposed on the applicant and the sentences imposed on the other applicants. In particular, in counsel’s submission, the differentiation of only one year as between the sentence of eight years’ imprisonment imposed on Sazdov on the count of manslaughter and the sentences of nine years’ imprisonment imposed on Noel Lunt and Huynh on the count of manslaughter, and the relatively small difference between the individual sentences of three years’ and 18 months’ imprisonment imposed Sazdov on the counts of recklessly causing serious injury and recklessly causing injury compared to the individual sentences of five years and two years imposed on Noel Lunt and Huynh on the counts of intentionally causing serious injury and intentionally causing injury, made plain that the judge had not given sufficient weight to the principle of parity.
That submission is not convincing. So far as the count of manslaughter is concerned, I regard the difference of 12.5% between nine years and eight years’ imprisonment as a significant difference in the circumstances of this case and certainly within the range of a sound discretionary assessment of the competing degrees of culpability in relation to that offence. Similarly, with the counts of intentionally and recklessly causing serious injury and injury, the lower level of the applicant’s culpability is reflected in the fact that he pleaded guilty to and was convicted of recklessly causing serious injury and recklessly causing injury, whereas Noel Lunt and Huynh pleaded guilty to and were convicted of intentionally causing serious injury and intentionally causing injury. Given the maximum penalties of 20 years’ imprisonment and 10 years’ imprisonment applicable to the offences of intentionally causing serious injury and intentionally causing injury, compared to the maximum penalties of 15 years’ imprisonment and five years’ imprisonment applicable to the offences of recklessly causing serious injury and recklessly causing injury, the individual sentences which the judge imposed on Sazdov and the individual sentences imposed on Noel Lunt and Huynh appear as more or less precisely proportional to their respective degrees of involvement
Additionally, despite the relatively limited nature of Sazdov’s physical involvement in the attack, and the judge’s finding that Sazdov’s culpability was accordingly less than that of the other applicants, his Honour also made plain in his sentencing remarks that he sentenced Sazdov on the basis that Sazdov and the other applicants were acting in concert in the attack on the occupants of the Magna; that Sazdov had pleaded guilty to the charges of recklessly causing serious injury and recklessly causing injury on the basis that he aided and abetted those offences; and that he pleaded guilty to the offence of affray on the basis that he participated in a fight in a public place in which the degree of violence which was used and displayed was such as would reasonably put any bystander in real fear.
Finally on this point, although Sazdov’s role may have been less than that of the other applicants, it was still a very substantial degree of involvement in a very serious crime. He was party to the agreement to pursue the Magna and attack its occupants. He was involved in the pursuit of the Magna and the attack upon its occupants. He armed himself for the purpose and he surrounded, jumped on and
kicked the windscreen of the victims’ car, in order, plainly, to facilitate the attack on its occupants.
All things considered, I do not consider that Sazdov is entitled to harbour a justified sense of grievance as to the differences between the sentence imposed on him and the sentences imposed on the other applicants.
Conclusion
It follows from the reasons I have given, that I would refuse each applicant leave to appeal, except in the case of LK. In the case of LK I would allow his appeal on Ground 3 and reduce his non-parole period by three months.
NEAVE JA:
I agree, for the reasons given by Nettle JA, that each applicant, apart from LK, should be refused leave to appeal against sentence. I also agree with the reduction of LK's non-parole period proposed by his Honour.
TATE JA:
I have had the benefit of reading the reasons of Nettle JA for refusing each applicant leave to appeal, except LK, with which I agree. I would also allow LK’s appeal on the ground that his period of detention in a youth justice centre for offences committed in 2007 was not taken into account by the trial judge in the exercise of the Renzella discretion[28] and I agree, in the exercise of that discretion, that the non-parole period to be served by LK should be reduced by three months.
[28]R v Renzella [1997] 2 VR 88, 98.
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