Mang v The Queen
[2022] VSCA 10
•11 February 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0114
| SANG ZUNG MANG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 11 February 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 10 |
| JUDGMENT APPEALED FROM: | DPP v Yasiri (County Court of Victoria, Judge Meredith, 25 June 2021) |
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CRIMINAL LAW – Leave to appeal – Sentence – One charge of home invasion – One charge of intentionally damaging property – Related summary offence – Applicant already serving sentence with under 4 months left to run – Sentence of 4 years and 9 months ordered to be served concurrently – Whether judge erred in applying principle of totality – Leave to appeal refused.
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| Written submissions: | Counsel | Solicitors |
| For the Applicant | Ms J McColl | Victoria Legal Aid |
| For the Respondent | Mr G Buchhorn | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 24 June 2021, the applicant pleaded guilty, before a judge of the County Court, to one charge of home invasion,[1] one charge of intentionally damaging property, [2] and one related summary charge of possessing a controlled weapon.[3]
[1]Contrary to Crimes Act 1958 s 77A.
[2]Contrary to Crimes Act 1958 s 197(1).
[3]Contrary to Control of Weapons Act 1990 s 6(1).
On 25 June 2021, the judge sentenced him as follows:
| Charge on indictment C2014078 | Offence | Maximum | Sentence | Cumulation |
| 1 | Home invasion | 25 years’ imprisonment | 4 years’ imprisonment | Base |
| 2 | Intentionally damaging property | 10 years’ imprisonment | 18 months’ imprisonment | 8 months |
| Related summary offence | ||||
| Charge 4 | Possessing a controlled weapon | 1 year’s imprisonment | 4 months’ imprisonment | 1 month |
| Total effective sentence | 4 years and 9 months’ imprisonment | |||
| Non-parole period | 3 years | |||
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991 | 20 days | |||
| 6AAA statement | 6 years’ imprisonment with a non-parole period of | |||
| Other relevant orders | Disposal order (machete) | |||
At the time of sentence, the applicant was already serving a sentence of
2 years and 1 month’s imprisonment with an 18 month non-parole period[4] for breaching a community correction order. That sentence was imposed by another judge of the County Court on 15 December 2020. By the time the present sentence was imposed, the non-parole period of the existing sentence had passed, and the existing sentence had less than 4 months to run. The judge ordered that the present sentence be served concurrently with the existing sentence.[5]
[4]DPP v Yasiri (County Court of Victoria, Judge Meredith, 25 June 2021) [91] (‘Sentencing Remarks’).
[5]Ibid [100].
The applicant now applies for leave to appeal on a single proposed ground: that the judge erred in applying the totality principle, by insufficiently moderating the sentence in light of the existing sentence.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of offending
At the time of the offending, the applicant was 20 years old. He was subject to a community correction order imposed earlier in 2020 in respect of charges of attempted armed robbery, intentionally damaging property and breaching bail. These charges related to offending which occurred in September 2018.
The applicant was a member of a particular faction of the ‘Brotherhood’ gang. In November 2020, the car of a gang member was vandalised. The word ‘Bitch’ was emblazoned on the car.
The suspected vandal was a teenage girl. Just after midnight on 17 November 2020, the applicant arrived at her home with a co-offender, Mohammed Ali Habeeb Yasiri. The girl was present, along with her mother and two other family members, one of whom is intellectually disabled. The two offenders smashed the front bedroom windows by throwing rocks and beer bottles. They also smashed a front lounge room window, through which they entered the house.
The applicant was armed with a machete. One of the men was overheard saying ‘Fuck bitch, I’m going to get you.’ One resident fled into the bathroom while the other residents, including the girl, ran into the back yard. As the two men proceeded through the residence, they knocked items from shelves and damaged the walls. The applicant approached the back door and stood there holding the machete. As the offenders were leaving, the applicant pushed over a television, and stomped on it, destroying it (charges 1 and 2 — home invasion and intentionally damaging property).
Two days later, the applicant was at a plaza in Werribee with other ‘Brotherhood’ members. After a car pulled over nearby, the applicant produced his machete and chased the vehicle away (summary charge 4 — possessing a controlled weapon).
The applicant was arrested on 26 November 2020, and initially denied involvement. He has been in custody since that date.
As mentioned, on 15 December 2020, while on remand for the present offending, the applicant was sentenced by another judge of the County Court for breach of the community correction order. For that offence, he was sentenced to 2 years and 1 month’s imprisonment with an 18 month non-parole period.[6]
[6]Ibid [91].
Sentencing remarks
The judge in the present matter described the offence of home invasion as especially serious, in light of the considerable maximum penalty and its character as a ‘category two’ offence requiring the imposition of a term of imprisonment absent a special reason.[7] He described the applicant’s offending as a ‘fairly serious’ example of the offence.[8] Denunciation and general deterrence, he said, therefore assumed importance in the sentencing exercise.[9]
[7]Ibid [36].
[8]Ibid [41].
[9]Ibid [44].
The judge referred to the following matters in mitigation:
(a) the applicant’s early guilty plea, and the enhanced utilitarian value of such a plea during the ongoing pandemic;[10]
[10]Ibid [45]–[46].
(b) the applicant’s ‘degree of remorse’, evidenced by his guilty plea;[11]
(c) the applicant’s youth, and the heightened importance of his rehabilitation;[12] and
(d) the applicant’s prospects of rehabilitation, which the judge said had to be approached ‘with some caution’.[13]
[11]Ibid [47].
[12]Ibid [48]. The mitigatory effect of the applicant’s youth was tempered somewhat by the serious nature of the offending and the applicant’s significant criminal record.
[13]Ibid [96].
The judge referred to the applicant’s significant prior criminal history, which bore on his moral culpability for the present offending, and increased the importance of the sentencing objectives of specific deterrence and community protection.[14] The applicant’s prior criminal history included relevant and recent convictions for aggravated burglary, armed robbery and intentionally damaging property. As mentioned, the sentence which the applicant was already serving was for breach of a community correction order. That order was imposed earlier in 2020, as part of a combination sentence in respect of which there were 456 days of time served, for charges of attempted armed robbery, intentionally damaging property and breaching bail.[15]
[14]Ibid [90].
[15]It is not relevant that the period of time served was in excess of the period of one year fixed by s 44(1) of the Sentencing Act 1991: see Boulton v The Queen (2014) 46 VR 306, 360-1 [236]‑[238] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); Younger v The Queen [2017] VSCA 199 [65] (Redlich and McLeish JJA and Croucher AJA).
Relevantly, the judge also expressly stated that he would ‘have regard to the sentence which [the applicant was] currently undergoing as the sentencing principle of totality requires’.[16] He explained:
I am required to consider the total criminality involved in all of the offences for which you are to be sentenced and the offences for which you are currently serving a sentence. I must evaluate the overall criminality involved in all of the offences, so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be, and which have been imposed. To the extent to which these matters have been made known to me, I have done so.[17]
[16]Ibid [92].
[17]Ibid [93].
Proposed ground of appeal
The proposed ground of appeal is as follows:
The learned sentencing judge erred in the application of the totality principle by failing to moderate the individual sentences and/or cumulation orders and the non-parole period to ensure that the total period the applicant would spend in custody, bearing in mind the sentence he was already undergoing, would be just and appropriate.
The applicant submitted that the principle of totality requires that where there is ‘insufficient overlap’ between an existing and new sentence (meaning that there is an insufficient available period of concurrency) the new sentence will require moderation. Here, it was said, the available period of concurrency was less than four months, which was insufficient, especially given the applicant’s youth and early guilty plea, made during the pandemic. It was submitted that, despite the need to correspondingly moderate the applicant’s sentence, there was no indication that the judge had done so. The individual sentences and orders for cumulation were ‘substantial’. Taking the existing sentence into account, the applicant’s effective aggregate sentence is nearly 5 years and 3 months’ imprisonment, with an effective non-parole period of some 3 years and 6 months. (This leaves out of account the period of 456 days previously served as part of the combination sentence imposed for the earlier offending. If that period is also taken into account, the effective aggregate sentence is about 6 years and 6 months’ imprisonment.)
The respondent contended that the judge’s application of the principle of totality was entirely orthodox. The judge was alive to the period the applicant had already spent in custody under the existing sentence. He accepted that the sentence for the present offending should be moderated to ensure that there is ‘appropriate relativity’ between the total criminality in all of the offences (including those the subject of the existing sentence) and the effective length of the existing and new sentences. The judge was not required to go further, and expressly, or with arithmetic precision, identify the manner in which any sentence had been moderated. The effective length of the existing and new sentences were said to appropriately reflect the applicant’s total criminality, having regard, for example, to:
(e) the distinct and serious nature of the offending the subject of the existing sentence, which occurred several years earlier than the present offending and also involved violence and the use of a weapon;
(f) the seriousness of the present offending, which foregrounded the sentencing objectives of general deterrence, denunciation and just punishment;
(g) the applicant’s extensive criminal record involving serious offences of violence and property damage, sometimes involving breach of community correction orders and other court orders; and
(h) the applicant’s limited remorse, guarded prospects of rehabilitation, and the somewhat muted mitigatory effect of his youth given the seriousness of the offending and his extensive prior criminality.
The principles according to which a sentence must be imposed when the person is already under a sentence for other offences are not in doubt. In Postiglione v The Queen,[18] McHugh J said:
The application of the totality principle … requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.[19]
[18](1997) 189 CLR 295 (‘Postiglione’).
[19]Ibid 308 (citations omitted).
This Court recently explained in DPP v Bowen,[20] that the ‘extension’ of the totality principle described by McHugh J applies to any case where the offender being sentenced is already serving a sentence. The Court said:
In such a case, totality requires that the total criminality involved in both sets of offences be compared with ‘the total period to be spent in custody’ under both the existing and the proposed sentence. That total period should ‘fairly represent’ the total criminality involved in all of the offences.
Postiglione thus formulated a test of ‘full proportionality’ for the case of an offender already serving a sentence. That is, the full period of custody under the two sentences (existing and proposed) should be proportionate to the total criminality involved in the two sets of offences.[21]
[20][2021] VSCA 355.
[21]Ibid [26]–[27] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA).
The sentencing judge in the present matter was keenly alive to the requirement of ‘full proportionality’, as the passage from his remarks quoted at [16] above demonstrates. The applicant’s task in establishing that the judge nonetheless failed to apply the principle is therefore not an easy one. The starting point of the argument is that, while the judge ordered full concurrency for the relatively limited period available, being something short of 4 months, he did not state in his sentencing remarks that he had moderated any part of the sentence in order to satisfy the principle of totality. It is contended that it is therefore ‘fair to conclude that no moderation took place’.[22]
[22]Perhaps in recognition of the judge’s observation that he could only act on the basis of the extent to which the earlier criminality had been made known to him (see at [16] above), the applicant does not advance an argument based on the specific details of the prior offending.
This argument cannot be accepted. The passage set out at [16] above is expressed in general terms and provides no support for the argument that the judge regarded the provision for concurrency as adequate by itself to ensure the appropriate relativity between the totality of the criminality and the total effective length of the sentences. The passage adopts a broader focus, without descending to specifics (there or elsewhere in the sentencing remarks) as to the precise mechanism by which totality was to be achieved. The absence of any reference to moderation of the sentence is therefore not significant. Moreover, the order for concurrency is mentioned several paragraphs later after dealing with other matters, including the identification of the sentence to be imposed. The context therefore also does not support the contention that the judge considered that concurrency alone would ensure compliance with the totality principle.
Finally, the sentences themselves are not so high as to infer that they were not moderated in the interests of totality. The home invasion was serious. It occurred after midnight, in company, and at a time when the victim could be expected to be at home. It was accompanied by extensive and gratuitous property damage and was plainly calculated to terrify the occupants (one of whom lives with an intellectual disability and was especially affected). The offence was exacerbated by the fact that it was committed in pursuit of a perceived grievance against one of the occupants of the house.[23] In the circumstances, the sentence of 4 years’ imprisonment sits comfortably within the available range, especially when account is taken of the applicant’s extensive history of criminal violence and property damage.[24] The same is true of the total effective sentence of 4 years and 9 months’ imprisonment.
[23]Hope v The Queen [2021] VSCA 177 [55] (Kaye and Osborn JJA).
[24]The maximum sentence is 25 years’ imprisonment.
In that context, it should also be noted that the judge sentenced Yasiri to 3 years’ imprisonment for the home invasion. He explained that the distinctions that he made between the two offenders included Yasiri’s lack of prior convictions, his greater remorse, intellectual deficits and more promising rehabilitative prospects, and the fact that it was the applicant who wielded the machete.[25] Yet the difference between the sentences was comparatively modest: 1 year (or 25 per cent). This is consistent with regard also having been had to the consideration, in favour of the applicant and not applicable to Yasiri, that totality required regard to be had to the fact that an existing sentence was also being served.
[25]Sentencing Remarks [97]-[98].
Accordingly, the sentencing remarks show that the judge was aware of the applicable principles and the need to apply them in this case, and the sentence itself is not so high as to suggest that he must have failed to do so. In the circumstances, the proposed ground of appeal is not reasonably arguable.
Conclusion
For these reasons, leave to appeal should be refused.
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