Mak v R
[2011] VSCA 5
•20 January 2011
COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0868
| DEAN EDWARD MAK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA and KING AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 January 2011 |
| DATE OF JUDGMENT | 20 January 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 5 |
| JUDGMENT APPEALED FROM | R v Mak (Unreported, County Court of Victoria, Judge Pullen, 12 October 2009) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one count of recklessly causing serious injury – Appellant struck victim once with fist to right cheek – Attack unprovoked – Extent of injury unclear – Sentenced to three years and six months’ imprisonment with non-parole period of two years and nine months – Offence committed while appellant on bail for other offences – Appellant sentenced while already undergoing a sentence which related to a series of other offences – Appellant to serve a total of just over four years’ imprisonment with non-parole period of, in effect, three years, three months and ten days – Principle of totality – Sentence not manifestly excessive – Non-parole period not manifestly excessive – Sentencing judge imposed non-parole period described as concurrent with earlier non-parole period – Failure by sentencing judge to ‘fix a new single non-parole period in respect of all’ sentences the appellant was to serve – Breach of s 14(1) of Sentencing Act 1991 – Appellant re-sentenced to three years’ imprisonment with non-parole period of two years – Appeal decision no point of general principle.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Robert Davis Solicitor |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
KING AJA:
The appellant, Dean Edward Mak, pleaded guilty in the County Court to one count of having, on 5 October 2008, recklessly caused serious injury. The circumstances surrounding that offending were set out in a document marked ‘Exhibit A’, tendered on 30 September 2009, during the course of the plea, and in the sentencing remarks of her Honour Judge Pullen when she sentenced the appellant on 12 October 2009.
In brief compass, those circumstances were as follows. On 3 October 2008, the appellant was charged with having assaulted a woman by the name of Jaymie Bailey. Ms Bailey was the de facto partner of the complainant, Grant Penn. Mr Penn made a statement to police in support of that charge.
At about 4.00pm on 5 October 2008, Mr Penn left his home in Morwell and proceeded to the shops. At the corner of Vary Street and Symon Crescent, he encountered the appellant and his partner, Kate Dunstan, who were riding bicycles. Both the appellant and Ms Dunstan verbally abused Mr Penn, who ignored them and continued shopping. A short time later, Mr Penn left the shopping area to go home.
As Mr Penn approached the intersection of Vary Street and Savige Street, the appellant and Ms Dunstan rode towards him from behind. Thereafter, the appellant struck Mr Penn with his fist to the right cheek. That caused Mr Penn to fall backwards. He landed between the footpath and a front garden. His false teeth fell from his mouth, and were smashed. The appellant was seen to be standing next to Mr Penn shouting at him as he was trying to get up. Eventually, the appellant rejoined Ms Dunstan. Shortly afterwards, Mr Penn regained his feet and continued walking towards his home. The appellant followed him for a short time, calling out at one point ‘Don’t forget your milk!’.
After Mr Penn arrived home, police were contacted an ambulance called. Mr Penn was taken to the LaTrobe Regional Hospital, where he was examined and found to have a black eye, severe pain in his right facial area and some dizziness. He was treated and discharged.
The next day, Mr Penn consulted his local doctor and was referred to the Alfred Hospital. His treating GP, Dr T C Norwood, believed him to have sustained a depressed fracture of his cheekbone, causing numbness in his face and some double vision. Ultimately, no report was provided from the Alfred Hospital as to any further assessment.
The appellant, by his plea of guilty, accepted that the injury caused to Mr Penn was relevantly a ‘serious injury’. He was, at the time of the commission of this offence, on bail for a series of other offences. These included intentionally causing serious injury. That offence was eventually resolved by a plea of guilty to the lesser offence of intentionally causing injury.
The appellant was interviewed by police on 26 October 2008. He denied having assaulted Mr Penn, and claimed not to have seen him for a substantial period of time. A contested committal was held in respect of this matter on 17 April 2009. The appellant pleaded not guilty to all charges including one of attempting to pervert the course of justice, two counts of intentionally causing serious injury, two alternative counts of recklessly causing serious injury, and two counts of making a threat to kill.
By letter dated 9 September 2009, the appellant offered to plead guilty to one count of having recklessly caused serious injury to Mr Penn. That offer was accepted on the following day. Thereafter, on 28 September 2009, a presentment was filed and the appellant was arraigned and pleaded guilty to that offence. The plea was heard on 30 September 2009.
On 12 October 2009, the appellant was sentenced to be imprisoned for a term of three years and six months. The sentencing judge fixed a non-parole period of two years and nine months.
At that time the appellant was sentenced for this offence, he was already undergoing a sentence imposed in the County Court on 8 July 2009. That sentence related to a number of matters.
First, the appellant had appeared at the Magistrates’ Court on 29 February 2008 where he was convicted of one count of recklessly causing serious injury, one count of recklessly causing injury, one count of unlawful assault, one count of threatening to inflict serious injury and one count of assault by kicking. He was sentenced on the first charge to be imprisoned for a period of 12 months, that sentence to be served by way of an intensive correction order and further sentenced to be imprisoned for an aggregate period of 12 months on charges 2 to 5. The aggregate sentence was wholly suspended for a period of 12 months.
Second, the appellant breached both the intensive correction order and the suspended sentence when he committed the offence of intentionally causing injury to Mr Penn’s partner, Ms Bailey. That matter was initially dealt with on 24 March 2009 at the LaTrobe Valley Magistrates’ Court. The subsequent sentence and breach were themselves the subject of an appeal to the County Court, which was heard on 8 July 2009. The end result was that the appellant was sentenced to a total of 492 days’ imprisonment with a non-parole period of 300 days, that sentence reflecting both the earlier matters and the offence committed against Ms Bailey. One hundred and seven days were declared as pre-sentence detention. That sentence was due to expire on 16 January 2010.
It seems that the appellant was in custody in relation to the present matter, the subject of this appeal, from 26 October 2008 until 24 March 2009. That made a total of 149 days solely attributable to this offence. The sentencing judge accordingly noted that there were 149 days of pre-sentence detention.
At some point in 2008, the appellant was also been tried in the County Court for some offence or offences, the details of which are not clear on the material. He was acquitted in relation to those matters, and no argument seems to have been advanced that he should receive any Renzella[1] time as a result of that trial and acquittal.
[1]R v Renzella [1997] 2 VR 88.
Accordingly, at the time of the plea the appellant had been in custody for a period of approximately 11 months, of which five months, or more precisely, 149 days, were attributable to this offence. The remaining six months or so was attributable to the prior offending. This means that the amount of time served for the assault on Ms Bailey, the breach of the intensive correction order, the breach of the suspended sentence of 12 months and the initial offending which led to the intensive correction order and the suspended sentence came to a total of 203 days, or just below seven months. That period of seven months is properly to be regarded as Renzella time.
The appellant was granted leave to appeal against sentence on 10 September 2010. Although there was only a single ground of appeal, that being that the sentence was manifestly excessive, Ashley JA was of the view that it was arguable that the principle of totality had not been given sufficient weight. As his Honour noted, the appellant now faces what is effectively a total period of imprisonment which exceeds four years, and a non-parole period of just over three years and three months. Second, his Honour considered that it was arguable that the effective non-parole period that had resulted was disproportionately high, when compared to the total effective sentence. That lack of proportionality was not explained. Moreover, the short potential period of parole arguably failed to give sufficient weight to the appellant’s prospects for rehabilitation. Third, his Honour considered that it was arguable that the sentence imposed was manifestly excessive in all the circumstances.
There are now extant four grounds of appeal, and an application to add a fifth. The grounds are as follows:
Ground 1: The learned sentencing judge erred in failing to have sufficient regard to the principle of totality.
Ground 2: The learned sentencing judge erred in failing to impose a sufficient gap between the head sentence and non parole period
Ground 3: The learned sentencing judge erred in her consideration of the extent of the injuries to the victim.
Ground 4: The sentence imposed is manifestly excessive.
The proposed fifth ground states:
The learned sentencing judge erred in failing to fix a single non-parole period in respect of all the sentences that the applicant was required to serve.
At the time that her Honour sentenced the appellant, he had been in custody for 352 days. She declared 149 of those days as being pre-sentence detention relevant to this current sentence. The balance of 203 days represented the total sentence that was served by the appellant in respect of other matters, as outlined earlier.
This offence was committed two days after he was bailed for the assault on Ms Bailey. Thus s 16(3C) of the Sentencing Act1991 is relevant, which states:
Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
Her Honour declared that the sentences should be concurrent and the period of 203 days was referred to as the ‘Renzella’ time. Whilst there is no doubt that Renzella time has the potential to ameliorate the actual time to be served, it must equally be noted that the decision does not stand for the principle that there should be no punishment at all for offences that fall within the category of those committed in this case.
In light of the circumstances surrounding the earlier offending, including the fact that it involved two separate series of assaults upon different persons, together with the fact that the second of those offences was committed whilst the appellant serving both imprisonment by way of an intensive correction order and a wholly suspended term of imprisonment, we consider that he was treated mercifully given the amount of time he was required to serve for those earlier offences. Consequently, we are of the view that this aspect of ground 1 cannot be sustained.
The sentencing judge imposed a sentence of three years and six months’ imprisonment which was to be served concurrently with the 492 day sentence the appellant was then undergoing. Her Honour fixed a non-parole period of two years and nine months, which was to be served concurrently with the 300 days that had previously been fixed as his non-parole period. The totality of the time to be served as a result of her Honour’s sentence is four years and 17 days with a non-parole period of three years and three months and approximately ten days.
The appellant submits that, accordingly, he will not be eligible for parole until he completes approximately 80 to 81% of the total effective sentence imposed. He relies upon the principles referred to in R v Tran[2] and R v Detenamo.[3]
[2][2006] VSCA 222, [27]-[28].
[3][2007] VSCA 160.
The decision in Tran outlines the factors to be considered in the imposition of a non-parole period. In Detenamo, Redlich JA referred to Tran and stated:
A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error. The following remarks of Batt JA in R v VZ are apposite:
“No mechanistic or formulaic approach is, in my view, to be taken to the fixing or reviewing of a non-parole period. But, in the face of his Honour’s acceptance of the strong evidence that the applicant was unlikely to re-offend, the length of the non-parole period fixed here … invites inquiry as to the reason or reasons for arriving at the period fixed. Unfortunately, the sentencing judge vouchsafed none. He was not bound to do so, and in many cases it will be obvious why a period outside the usual range, broadly defined, has been selected. But here, in the absence of reasons and in the face of the applicant’s rehabilitation, achieved and prospective, no countervailing reason suggests itself to me”.[4]
[4][2007] VSCA 160, [26] (citations omitted).
Counsel appear to have taken remarks in cases of this nature as being an indication that if a non-parole period exceeds 75% of the total effective sentence, then that is a proper basis, on its own, upon which to question the exercise of the sentencing discretion. That is altogether simplistic. There will be many cases where a ratio of more than 75% will be perfectly appropriate. It may be desirable, in such cases, for a sentencing judge to explain why he or she has chosen to fix a non-parole period of that order, but failure to do so will not inevitably mean that the sentencing discretion has miscarried. The particular facts of the case may make it perfectly obvious why a relatively short period of parole has been selected.
In that regard, careful attention should be paid to what the High Court stated recently in Hili v The Queen.[5] The Court said
there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, these are reasons enough to conclude that it is wrong to say, as the court of Criminal Appeal did, “that the ‘norm’ for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66%, which figure will be affected by special circumstances applicable to a particular offender.”
[5][2010] HCA 45, [44] (citation omitted).
The High Court went on to explain precisely why, in relation to Commonwealth offences, there should not be a predetermined ‘norm’ for the period of imprisonment prior to release on recognisance release order. It said:
It is wrong to begin from some assumed starting point and then seek to identify "special circumstances". Rather, a sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy.[6]
[6]Ibid.
In relation to the non-parole period, the sentencing judge considered the appellant’s criminal history. She noted that he had an extensive criminal record arising from 11 court appearances between May 1993 and February 2008. Of those 11 appearances, six involved the commission of offences of violence. She further noted that the appellant had been imprisoned for 19 days in November 2005 in relation to threats to kill and on 29 February 2008, some seven months prior to this offending, had been convicted and placed on a 12 month intensive correction order.
Her Honour stated, not surprisingly:
Regarding your rehabilitation prospects, I have difficulty concluding [that] they are good. Much will depend upon what you do about anger issues from this time onward. I must, however, in sentencing maximise your chances of rehabilitation as they may be. As they currently stand, I stress currently, I have at best guarded optimism.
Mr McKenry conceded that you had an anger management problem.
It has always been recognised that perceived prospects of rehabilitation are of critical importance in relation to the length of any non-parole period that is imposed. When an offender has good prospects of rehabilitation, the community requires less in the way of protection by a lengthy period of incarceration. Release on parole is a concession that is made when the Parole Board decides that the benefits ‘accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment’.[7]
[7]Bugmy v The Queen (1990) 169 CLR 525, 532.
As the sentencing judge said:
I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. I consider there is a risk to other members of the community from you and that will only be ameliorated by you undertaking courses to address anger in particular in the future.
We reject ground 2.
Ground 3 was not argued.
Ground 4 concerned the issue of manifest excess. Counsel relied upon the fact that the appellant had previously only served one period of imprisonment of 19 days before he was sentenced in relation to this matter. It was submitted that the injuries to Mr Penn, though serious, were not of the most grave kind. Those injuries had been inflicted by a single punch.
It was conceded that, at the time the appellant committed the offence, he was on bail for a similar charge relating to Ms Bailey, and that he was serving various other sentences as well. It was further conceded that the appellant had a troubling criminal history with a number of prior convictions for violence and that he had difficulty in managing his anger.
In support of his argument that this sentence was manifestly excessive, counsel for the appellant relied upon the sentencing snapshot with respect to the 560 offenders who were sentenced for recklessly causing serious injury between 2004 and 2009. The median sentence of imprisonment was two years and the average sentence ranged between one year and eight months and two years and eight months.
In Hili[8], the High Court said, regarding the use of statistics:
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.[9]
[8]Hili v The Queen [2010] HCA 45.
[9]Ibid [48].
The Court added:
In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate court.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence.” Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned.”[10]
[10]Ibid [54] (citations omitted) (emphasis in original).
The Court continued:
As the plurality said in Wong:
“[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to sentence an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. “[11]
[11]Ibid [55] (citation omitted) (emphasis in original).
It is clear that, while sentencing statistics can provide a useful overall picture of the kinds of sentences typically imposed for particular offences, they cannot be taken as a positive indication, by themselves, that a particular sentence is manifestly excessive. There is much more that needs to be known about what the bare statistics reveal before they can be used in that way.
While the sentence of three years and six months which her Honour imposed was undoubtedly a stern one, it was not outside the range properly available for offending of this nature. That is particularly so having regard to the appellant’s background. Apart from his plea of guilty, there was little to be said by way of genuine mitigation. Those factors that could be called in aid by the appellant were taken into account, and, in our view, cannot be said to have been given insufficient weight.
Ground 5 complains of a failure on the part of the sentencing judge to have fixed a new and single non-parole period. Both her Honour’s sentencing remarks and the return of prisoners make it clear that this criticism is warranted. Her direction that the head sentence and the non-parole period were to be served concurrently with the sentence previously imposed by another judge of the Court had the effect of subsuming within her Honour’s sentence the non-parole period that had been previously fixed by that other judge. There was, however, no single new non-parole period fixed, as required by s 14(1) of the Sentencing Act 1991.
It is clear that her Honour believed that, by making the new non-parole period concurrent with that which had previously been fixed, she had satisfied the requirements of s 14(1). Indeed, at [59] of her sentencing remarks, she referred specifically, and in terms, to the requirement that she set a new non-parole period pursuant to that subsection.
Of course, her Honour’s order for concurrency achieved the same practical result in the particular circumstances of this case as if she had complied with the requirements of s 14(1). The appellant was not prejudiced in any way by the failure to ensure that he was undergoing a single non-parole period, rather than two, albeit being served concurrently. In a sense, her Honour’s order involved only a slip in the process of re-sentencing the appellant. Nonetheless, the effect of the sentence as imposed was that the appellant was serving two non-parole periods.
This issue was examined in R v Wang,[12] where this Court referred first to what the sentencing judge had said, in that case, when he imposed sentence:
A total effective term of imprisonment of six years is therefore imposed on the present counts. You are eligible for parole after serving four years of the present sentences. All sentences imposed today are to be served concurrently with your present sentences. As a result, your minimum term of imprisonment has been increased by about 21 months as a result of these proceedings. [13]
[12][2009] VSCA 67.
[13]Ibid [8].
The Court then stated:
His Honour appears to have intended to set a new non-parole period of four years’ imprisonment. The respondent conceded that his Honour failed to expressly set a new single non-parole period in respect of both sentences, as required by s14(1) of the Sentencing Act 1991. The failure to do so meant that the effect of the orders pronounced was that the appellant was serving two non-parole periods. The new single non-parole period, had it been fixed, would have commenced on the date that the new sentence was imposed and allowance made for the non-parole period already served under the previous sentence. The ground of appeal that raises this complaint has been made out.[14]
[14]Ibid [9] (citation omitted).
The Court in Wang allowed the appeal, and re-sentenced the appellant. There were in that case other sentencing errors which had to be rectified as well. That is not the position in the present appeal. Nonetheless, an invalid sentence should not be permitted to stand.
It is essential that sentencing judges understand the need to comply with s 14(1). While a head sentence may be ordered to be served either cumulatively upon, or concurrently with a sentence previously imposed, the determination and pronouncement of a new single non parole period cannot be achieved simply by ordering that it be served concurrently with a pre-existing non-parole period.
As the Court stated in R v Bortoli:[15]
Section 14(1)(b) requires the Court imposing the subsequent sentence of imprisonment to determine, first, whether or not “it proposes to fix a non-parole period in accordance with s.11”. If the Court determines that a non-parole period is appropriate, the Court should not consider, or state, what the non parole period would be with respect to the head sentence which the Court intends to impose. Instead, the Court must fix a new single non-parole period by reference to the total effective head sentence, being the combination of all sentences which the offender is required to serve and complete, including the sentence of imprisonment about to be imposed. The Court must have regard to the totality of the offending, including factors in aggravation or mitigation and factors personal to the offender which are relevant to the minimum sentence which should be imposed.[16]
[15][2006] VSCA 62.
[16]Ibid [49] (citations omitted) (emphasis in original).
While the appellant cannot point to any prejudice suffered as a result of the error, that is not currently the issue before this Court. Specific error having been demonstrated, ground 5 succeeds and the appellant falls to be re-sentenced.
We emphasise, as previously indicated, that her Honour’s sentence of three years and six months with a non-parole period of two years and nine months, though severe, was within the range. However, when an offender falls to be re-sentenced by this Court, all matters must be considered afresh. It is we, therefore, who must determine what we regard as being the appropriate sentence.
Having given careful consideration to all of the circumstances in this case, we are of the view that a somewhat lower sentence than that imposed by the sentencing judge is warranted. We would set aside both the head sentence and the non-parole period and substitute a sentence of three years’ imprisonment, to be served concurrently with the sentence imposed upon the appellant by the County Court on 8 July 2009. We would fix a single new non–parole period of two years.
In accordance with the approach taken in DPP v Ibrahimoff[17], R v Rich (No 2),[18] and R v Devries[19] that sentence is deemed to have commenced on 12 October 2009, with a declaration that the appellant had, by that date, served 149 days of pre-sentence detention.
[17](2001) 3 VR 66, 67-68.
[18](2002) 4 VR 166.
[19][2005] VSCA 95, [17].
Any other ancillary orders are confirmed.
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