Mann v The Queen
[2011] VSCA 189
•24 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0787
| ARVINDER SINGH MANN | Appellant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES | WEINBERG and HARPER JJA and KING AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 May 2011 |
| DATE OF JUDGMENT | 24 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 189 |
| JUDGMENT APPEALED FROM | R v Mann [2009] VSC 536 (Curtain J) |
---
CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury; armed robbery – Total effective sentence nine years’ imprisonment with non-parole period seven years – Whether judge erred in referring to appellant’s prospects of deportation when fixing non-parole period – Judge did not fix heavier non-parole period due to likely deportation – Judge did not err in fixing non-parole period 78 per cent of total effective sentence – Not manifestly excessive – Appeal dismissed
---
| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Mr C B Boyce | Slades & Parsons |
| For the Respondent | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The appellant pleaded guilty in the Supreme Court at Melbourne to one count of intentionally causing serious injury (count 2) and one count of armed robbery (count 4).
He was sentenced to eight years’ imprisonment on count 2, and three years’ imprisonment on count 4. It was ordered that one year of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 2. That made a total effective sentence of nine years’ imprisonment. A non-parole period of seven years was fixed.
Background facts
The circumstances surrounding these offences were as follows. The victim, Shashikant Sharma, had met the appellant in December 2007. Some two weeks later, on Christmas Day, they spent the day together. Eventually, they ended up at Sharma’s home. Sharma provided the appellant with a meal and subsequently fell asleep. He was awoken by a blow to the head. He turned on a light and saw the appellant standing before him holding the handle of a pressure cooker. The cooker itself was lying on the floor. Sharma’s head was bleeding profusely. He cried out, ‘have you gone crazy’?
The appellant then attempted to hit Sharma with an empty bottle, but Sharma deflected the blow. The appellant then grabbed a rolling pin and struck Sharma to the head several times, and once on the shoulder.
The appellant then produced a knife from his jacket and demanded Sharma’s ATM card and his PIN number. Sharma handed over the card and provided the PIN number. The appellant then lunged at him with the knife, and a struggle ensued. Sharma managed to disarm the appellant, who then picked up a different knife from the table and again attacked Sharma. At that point, Sharma fell to the floor. The appellant stood over him, lifted Sharma’s chin and cut his throat, first in one direction and then in the other. The appellant then fled, taking Sharma’s wallet and his mobile phone.
Sharma was taken to the Alfred Hospital. He underwent emergency surgery. He was later assessed as having sustained multiple lacerations to the scalp, neck and face. The digital nerve to the index and middle fingers of his left hand was severed. He suffered two puncture wounds, one to the abdomen and the other to the left side of the chest. He also sustained a three centimetre wound to the left thigh, which went down to the bone. He underwent a second operation three days later. He was kept in an induced coma for a week, and remained in hospital for a total of just over three weeks.
The wounds to the neck caused significant bleeding. Although the abdominal wounds were severe, the extent of the bleeding from the neck posed the greatest threat to Sharma’s life.
After his attack upon Sharma, the appellant caught a taxi to Crown Casino. Afterwards, he caught another taxi to Sunshine. In two separate transactions, he withdrew a total of $2,000 from Sharma’s ATM account. The appellant then returned to his own home in Sunshine. He hid the clothing that he had been wearing in some bushes at the rear of the property.
On 31 December 2007, the appellant telephoned the police and voluntarily surrendered himself. He took part in a record of interview. He told police that he had been drinking on Christmas Day and that, at one point, Sharma had made an insulting remark about the appellant’s father and a derogatory remark about his religion. He claimed that Sharma had produced a knife which, after a struggle, the appellant had taken from him. There had then been a further altercation, during the course of which Sharma had been stabbed.
Later, but still during the course of the interview, the appellant admitted that it was he who had started the altercation. However, he claimed that he had no memory of what occurred because he was drunk at the time. He acknowledged that he had stolen Sharma’s mobile phone together with his ATM card and wallet. He said that he had taken these items because he had no money and was unemployed at the time.
Broadly speaking, the appellant claimed that, in stabbing Sharma, he had been acting in self defence.
The proceeding below
The judge rejected the appellant’s account of what had taken place. She noted that Sharma’s version of events was supported by other evidence. Her Honour’s finding in that regard is not challenged.
It was submitted by the appellant’s counsel below that these offences were not premeditated. Her Honour appears to have accepted that submission. However, her Honour considered that ‘[i]rrespective of the catalyst … [the appellant] subsequently engaged in a savage and vicious assault …’.[1]
[1]R v Mann [2009] VSC 536 (‘Sentencing Remarks’), [21].
The judge referred to Sharma’s victim impact statement, which she said spoke eloquently of the physical, emotional, and possibly psychological consequences of the appellant’s actions. Her Honour noted that Sharma bore facial scars as a result of the attack, and had been left with no feeling in his left cheek, and numbness to the palm, index and second finger of his left hand. His speech was impaired, and he had problems chewing food. He could not take weight on his left leg. He had been unemployed for five months after the attack. He had on-going problems with his memory. All in all, his life had been seriously adversely affected.
The judge noted that the appellant was aged only 23 at the time of these offences. He was born in New Delhi, and was the second of three children. He had received a good education, to Year 12 level, at a private school.
The appellant came to this country in 2005 on a student visa. He had studied hospitality management, and in 2008 had gained an advanced diploma in commercial cookery. He had also enrolled in an information technology course, although he had not yet completed that degree.
The judge observed that the appellant was fortunate to have a caring, supportive and law-abiding family. He was engaged to be married to a young lady who resided in India. Her Honour was told that it was still the appellant’s intention to marry and raise a family upon his eventual return to India.
There was evidence that the appellant had been a successful sportsman, having represented India in athletics. He was a Sikh by religion. Until he came to this country, he had had very little contact with alcohol. A report by Mr Patrick Newton, a clinical psychologist, noted that since the offending the appellant had gained insight into alcohol and its role in his offending. Mr Newton was of the opinion that the appellant was unlikely to re-offend.
The judge found that the appellant was remorseful. That finding was based, in part, upon his plea, but also upon the contents of a letter that he had addressed to the Court.
Her Honour identified a series mitigating factors in the course of her Sentencing Remarks. She referred to the appellant’s plea of guilty, which had been offered at an early stage, and to his obvious remorse. She particularly took into account the fact that the appellant had surrendered himself to the police, and that he had generally co-operated with them.
The judge also took into account the appellant’s relative youth, and his lack of prior convictions. She had regard to the fact that the appellant would be serving a significant term of imprisonment in what, for him, was a foreign country, away from regular family visits. She noted that his cultural and religious needs would not readily be accommodated within the prison environment. She described his prospects of rehabilitation as ‘excellent’.
However, against these factors stood the nature and gravity of the appellant’s offending. The judge noted that the maximum penalties for intentionally causing serious injury and armed robbery were 20 years’ and 25 years’ imprisonment respectively. Her Honour described the attack upon Sharma as savage and brutal, observing that it had resulted in his being gravely injured, with lasting consequences.
Having sentenced the appellant to eight years’ imprisonment on count 2 and three years’ imprisonment on count 4, and having fixed a total effective sentence of nine years’ imprisonment, her Honour then considered the non-parole period that should be fixed. In relation to that matter she said:
In order to address your prospects for rehabilitation, and mindful that upon your release into the community you will be deported to India, I propose to order that you serve a non-parole period of 7 years …[2]
[2]Sentencing Remarks, [47].
The appellant’s submissions
Counsel for the appellant relied upon two grounds in support of the appeal. These were:
1. The individual sentences, total effective sentence, and non-parole period are manifestly excessive.
2. The learned sentencing judge erred in fixing the non-parole period.
In support of ground 1, counsel submitted that a sentence of eight years’ imprisonment for intentionally causing serious injury was beyond the range reasonably available for offending of this nature. Counsel noted, in that regard, that the offence was not premeditated, and seemed to have arisen out of a drunken argument. The judge had made a series of findings that were favourable to the appellant. Apart from the weight to be given to his early plea, her Honour accepted that he was genuinely remorseful, and found that he had excellent prospects of rehabilitation. In addition, the appellant was able to call in aid his relative youth, and the burdensome nature that imprisonment would impose upon a young man of his social and cultural background.
Counsel referred to various Sentencing Snapshots published by the Sentencing Advisory Council. These indicated that the median sentence for the offence of intentionally causing serious injury was of the order of three years and six months. The average sentence was somewhere between three and four years.
Counsel also submitted that the non-parole period of seven years was excessive.
With regard to ground 2, counsel submitted that the judge had fallen into error in two quite specific ways when she fixed the non-parole period. First, a non-parole period of seven years came to 78 per cent of the total effective sentence. This was said by counsel to be an unusually high percentage given the circumstances of this case. Secondly, referring to her Honour’s statement in her Sentencing Remarks that she was ‘mindful’ of the fact that the appellant would be deported after his release from prison, counsel submitted that the prospect of deportation was an entirely irrelevant consideration when considering what should be done in relation to parole. Implicit in this ground is the suggestion that her Honour lengthened the minimum period of time that the appellant would be required to serve because he would be sent back to India as soon as that period had expired.
The Crown’s submissions
The Crown submitted that the sentence of eight years’ imprisonment imposed on count 2, and the total effective sentence of nine years, were within the range for an offence of this gravity. The Crown referred in that regard to R v Stuttard,[3] where Maxwell P said:
When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong - in this case specifically in fixing the non-parole period - that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.[4]
[3][2006] VSCA 112.
[4]Ibid [26].
As regards the appellant’s reliance upon Sentencing Snapshots, the Crown referred to the following observation in Hudson v The Queen:[5]
To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a “like” case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of “like” cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.[6]
[5][2010] VSCA 332.
[6]Ibid [32] (footnotes omitted).
In relation to ground 2, the Crown submitted that a 78 per cent ratio between a non-parole period and a total effective sentence did not in any way bespeak error. The Crown submitted that there is no firm and inflexible rule that a non-parole period must be less than three quarters of the head sentence, failing which it will occasion concern. Further, the Crown argued that there was a perfectly acceptable explanation for the judge’s decision to fix a non-parole period of seven years. That was the minimum term that her Honour considered the appellant should be required to serve for offending of this gravity. That decision fell squarely within the sound exercise of the sentencing discretion.
The Crown further submitted that her Honour’s observation that she was ‘mindful’ of the appellant’s likely deportation after he was released should be understood in context.
In that regard, the Crown drew attention to various passages in the transcript of the plea. Counsel who appeared on behalf of the appellant on the plea informed her Honour that the appellant had completed two years of his information technology course, and that it was his intention to complete those studies. Counsel said:
It will probably be in India, Your Honour, because he has been told that once he is released, he will be immediately deported.
Counsel returned to this subject shortly afterwards. After reminding her Honour that the appellant was aged 23, and that he had never consumed alcohol before coming to this country, counsel said this:
His intentions for the future are that once he is released from custody and has served any sentence that Your Honour deems appropriate, that he is looking forward to returning to live with his parents and will, in fact, as I have indicated to Your Honour, he will in fact be deported to that end. He knows that the owner [of] the factory where his father was employed has agreed to give him a job.
Counsel returned to this subject for a third time in the course of submitting that the appellant had found imprisonment particularly burdensome. He said:
He will be deported, as you have heard, and as we have been told, and he will also, when he is deported and goes back to live with his family, have to live with the stigma that not only has he offended in Australia in a serious way, but he has offended against a person who was known to his family. As I understand it, the victim at one stage worked in the same factory as his father, and that carries with it considerable stigma, and also the fact that he has brought upon his family the shame of being deported.
The Crown submitted, in effect, that what emerged from these passages was that the appellant was relying upon the fact that he would be deported by way of mitigation. When her Honour said, in the course of her Sentencing Remarks, that she was ‘mindful’ of what had been said on that subject, her observation should be understood as an acceptance on her part that there was some mitigatory force in that fact.
The Crown went on to submit that the judge had been entitled to approach the matter in that way. Contrary to the appellant’s submission, the likelihood of his deportation after serving his sentence was not an irrelevant consideration.[7] The law went no further than to say that the prospect of deportation could not justify the refusal to fix a non-parole period.[8]
[7]Guden v The Queen [2010] VSCA 196, [15]
[8]R v Strestha (1991) 173 CLR 48, 57 (Brennan and McHugh JJ).
Conclusion
This was a particularly serious example of what is always a serious offence.
The appellant’s attack upon his victim was vicious and sustained. It had catastrophic and on-going consequences for that victim. Although there were a number of mitigating factors, it was entirely open to the judge to impose the sentence that she did in relation to count 2.[9]
[9]See, for example, Ashe v The Queen [2010] VSCA 119. In that case, a head sentence of 10 years’ imprisonment was upheld by this Court in relation to the lesser offence of recklessly causing serious injury. In the particular circumstances of that case, the non-parole period was reduced from eight years to seven years. See generally, as to a complaint that a sentence is manifestly excessive, R v Abbott (2007) 170 A Crim R 306, 309 (Maxwell P).
I was initially concerned about her Honour’s reference, in her Sentencing Remarks, to the likelihood that the appellant would be deported after he served his sentence. It is implicit in the ground of appeal that complains about this remark that her Honour had in some way sought to compensate for the fact that the appellant would not be required to serve the last part of his sentence under supervision (that is, on parole) by fixing a heavier non-parole period than would otherwise have been warranted.
Had her Honour approached the matter in that way, she would have fallen into error.[10] However, it is tolerably clear from the passages of the plea transcript relating to the appellant’s deportation (set out at paragraphs [33] to [35] of these reasons) that his counsel wished to rely upon that likelihood as a mitigating factor, for the reasons that he articulated. When her Honour said in her Sentencing
Remarks that she was ‘mindful’ that upon his release he would be deported to India, she did so against the background of that reliance.
[10]R v Binder [1990] VR 563; and R v Shrestha (1990) 173 CLR 48. Both cases concerned the question whether a judge should decline to set a non-parole period in circumstances where the prisoner being sentenced would inevitably be deported at the expiration of his or her actual custodial term. In each case, that question was answered in the negative. However, it is not now, and never has been, the law in this State that the likelihood of deportation must invariably be disregarded as part of the sentencing process. The prospect of deportation can, for example, be taken into account by way of mitigation. See Guden v The Queen [2010] VSCA 196.
That context is important. At worst, her Honour’s remarks regarding this subject could have been expressed with greater clarity. I am not persuaded, however, that she fell into the error implicitly alleged by the appellant. Her Honour prefaced her remarks about deportation by referring to the appellant’s prospects of rehabilitation which, of course, she regarded as excellent. It is hardly likely, in those circumstances, that she would have treated those prospects of rehabilitation, coupled with the likelihood of deportation, as justification for fixing a heavier non-parole period than might otherwise have been imposed.
As regards the ratio of 78 per cent between the non-parole period and the total effective sentence, in my opinion that does not, in the circumstances of this case, indicate sentencing error.
If, contrary to my opinion, the judge did fall into specific error in the approach that she took to the matter of deportation when fixing the non-parole period, I would still conclude that no different, or less severe, sentence was warranted.
For these reasons, I would dismiss this appeal.
HARPER JA:
I have had the benefit of reading in draft the judgment of Weinberg JA. I agree with his Honour's conclusion and his reasons for it.
KING AJA
I agree with Weinberg JA.
- - - - -
5
5
0