Minh Duong v The Queen

[2015] VSCA 329

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0107

MINH DUONG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2015
DATE OF JUDGMENT:	7 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 329
JUDGMENT APPEALED FROM:	DPP v Duong [2015] VCC 601 (Judge Campton)

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CRIMINAL LAW – Sentence – Drug, dishonesty and violent offences – Approximately 2 years spent in custody for prior similar offending at time of sentence – Total effective sentence 3 years imprisonment with non-parole period of 18 months – Whether sentence manifestly excessive – Whether sentence breached principle of totality – No error – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms N Karapanagiotidis	Revill & Papa Lawyers
For the Respondent	Ms S M K Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

1. On 17 March 2015 the appellant pleaded guilty to one charge of theft, one charge of possession of a drug of dependence, and two charges of causing injury intentionally.

1. On 12 May 2015 he was sentenced by a judge in the County Court as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Theft [s 74 Crimes Act 1958]	10 years’ imprisonment	8 months’ imprisonment	3 months’ imprisonment
2	Possess a drug of dependence [s 73(1) Drugs, Poisons and Controlled Substances 1981]	5 years’ imprisonment or 400 penalty units	6 months’ imprisonment	3 months’ imprisonment
3	Intentionally cause injury [s 18 Crimes Act 1958]	10 years’ imprisonment	2 years’ imprisonment	Base
4	Intentionally cause injury [s 18 Crimes Act 1958]	10 years’ imprisonment	2 years’ imprisonment	6 months’ imprisonment
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		18 months’ imprisonment
Pre-Sentence detention declaration:		159 days
6AAA Statement:  4 years 6 months’ imprisonment with a non-parole period of 2 years 9 months

1. The circumstances of the offences were as follows.

1. At 3:15 am on 21 May 2013 police intercepted a Jeep motor vehicle speeding along the Western Freeway in Melton.  Three men, one of whom was the appellant, were in the vehicle.  The vehicle had been stolen on 12 May 2013 (charge 1 — theft).

1. When police examined the stolen vehicle some time later, they discovered two plastic bags containing methylamphetamine (charge 2 — possess drug of dependence).  The amount of the methylamphetamine was 14.9 grams.  Its estimated value was $8,000.  The sentencing judge concluded on the balance of probabilities that the appellant possessed those drugs for the purpose of trafficking rather than for personal use.[1] There is no challenge to that finding. The significance of that finding was that pursuant to s 73(1)(b) and (c) of the Drugs, Poisons and Controlled Substances Act  1981 the maximum penalty for the offence was five years’ imprisonment (or a fine or both) rather than one year.  

   [1]DPP v Duong [2015] VCC 601 [4] (‘Reasons for Sentence’).

1. One of the people who was in the car at the time it was apprehended by police knew the owner.  That person arranged for the owner to notify him when the police returned the vehicle.  The vehicle was returned on 3 June 2013, without the methylamphetamine.  The owner notified the associate of the appellant of the car’s return.  An arrangement was then made to meet the owner at a car park.

1. The appellant and a number of others met the owner at the car park.  The appellant was of the view that the owner had taken the drugs.  When his demands for their return were met with a denial of any knowledge, he began striking the owner with a metal object, thought to be some kind of crowbar.  The appellant struck the victim repeatedly with the metal object including to his head, face and body.  The victim also suffered injuries to his hand and fingers when attempting to block the blows (charge 3 — causing injury intentionally).  The appellant then got on his motor bike and rode away.

1. Later the same day the person who had originally made the arrangement for the meeting contacted the owner again.  He told him that the appellant wished to apologise to him and an arrangement was made for another meeting.  When the two met again the appellant did not say anything.  He resumed his attack on the victim with the same metal object.  The victim was repeatedly struck again (charge 4 — causing injury intentionally).

1. The victim vehicle owner was taken to the Royal Melbourne Hospital where he was treated for the following injuries: 

(a)deep lacerations to the left hand, left little finger and left ring finger involving tendons; 

(b)scalp laceration of one centimetre down to his skull (back of head);

(c)full thickness laceration of upper lip;

(d)laceration to right upper back/scapula;  and

(e)minor abrasions.

1. The relevant indictment included charges against the appellant and two others.  The appellant’s trial was fixed for 16 March 2015.  On 17 March 2015 the appellant pleaded guilty.  Certain charges which were originally on the indictment were not proceeded with.

1. On 26 August 2015 Osborn JA gave the appellant leave to appeal on the following grounds:

1.The sentences imposed on the individual counts and the total effective sentence and the non-parole period are manifestly excessive.

2.The total effective sentence, the minimum non-parole period and/or the orders for cumulation on each count are excessive and infringe against the principle of totality.

3.The learned sentencing judge erred in her application of the principles in Boulton’s case[2] and/or failed to take into account relevant considerations.

[2]Boulton v The Queen [2014] VSCA 342 (‘Boulton’).

1. At the time he was sentenced on 12 May 2015 the appellant had been in custody since 4 June 2013.  Thus, he had been in custody for almost two years.  The pre-sentence detention declared of 159 days was considerably less than that period because he had been serving sentences for other crimes. 

1. In substance, the submission put on his behalf in the appeal was that the sentences imposed on 12 May 2015 were unexceptional in themselves, but that given the other sentences which had been imposed and the period of time during which he had been in custody for those other matters, the 12 May 2015 sentences were manifestly excessive, and infringed against the principle of totality, and the sentencing judge had failed to have proper regard to the principles concerning community correction orders as set out in Boulton.

1. It is necessary to review the appellant’s criminal history.

Appellant’s criminal history

1. The appellant was born on 29 October 1984.

1. On 3 March 2004, when he was 19, the appellant was convicted at the Melbourne Magistrates’ Court of four counts of possession of property being the proceeds of crime and two counts of failing to answer bail.  He was fined without conviction.

1. On 8 August 2005, when he was 20 years of age, he was convicted at the Melbourne County Court of unlawful assembly and sentenced to a community based order of two years.  Conditions were imposed requiring him to undertake unpaid community work and to undergo assessment for programmes to reduce the risk of reoffending and to participate in such programmes as directed.  On 19 June 2006, when he was 21, he was dealt with in the Melbourne County Court for breach of the community based order which had been imposed on 8 August 2005.  The order was cancelled and he was sentenced to a period of imprisonment of one month.

1. On 25 August 2012 and 25 January 2013 the appellant committed a number of drug and firearm offences.  He was eventually dealt with in relation to these offences, together with a number of other offences, at the Sunshine Magistrates’ Court on 4 December 2013.  He was on remand for a time but was then bailed.  According to evidence given before the sentencing judge, he was bailed on conditions requiring him to reside with his fiancé’s family in the Great Western district of Victoria.  There were bail conditions imposed requiring participation in treatment and rehabilitation programmes.

1. It was while on bail, and while required to be living in the Great Western district, that the offences the subject of the sentences under appeal were committed.  Those offences were committed on 21 May 2013 and 3 June 2013.

1. At approximately the same time, on 26 and 27 May 2013, the appellant committed a further series of offences, being false imprisonment, two counts of intentionally causing injury and possession of a drug of dependence (amphetamine).  The appellant and a number of others were involved in the abduction and assault of a person.

1. On 4 December 2013 the appellant appeared at the Sunshine Magistrates’ Court in relation to the offences which he had committed on 25 August 2012 and 25 January 2013.  As indicated, there were firearm offences.  There were also many driving offences, an offence of theft of a motor car, an offence of dealing with property suspected of being the proceeds of crime, offences of trafficking methylamphetamine and possessing cannabis and methylamphetamine, and seven offences of failing to answer bail.  He was sentenced on that occasion to an aggregate sentence of 15 months’ imprisonment, eight months of which was suspended.  The pre-sentence detention was declared to be 227 days.  This was the period from 4 June 2013 (the day after the assault offences which are the subject of the sentences under appeal) to 4 December 2013.

1. On 1 September 2014 the appellant appeared before the Melbourne Magistrates’ Court in relation to the offences committed on 26 and 27 May 2013.  These were the offences of false imprisonment, intentionally causing injury, and possession of a drug of dependence.  In the Magistrates’ Court he was sentenced to an aggregate term of imprisonment of 18 months.  He appealed that sentence to the County Court.  On 11 September 2014 that appeal was allowed and he was sentenced to an aggregate term of imprisonment of 18 months of which six months was suspended.  Pre-sentence detention of 281 days was declared.  This was the period between 4 December 2013 (the Magistrates’ Court appearance at Sunshine) and 11 September 2014.

1. The appellant completed the sentences imposed upon him at the Sunshine Magistrates’ Court and in the County Court on 4 December 2014.  From that point onwards his time in custody was pre-sentence detention in relation to the sentences now under appeal.  As at the date of sentence, 12 May 2015, the pre-sentence detention was 159 days.

1. The total effective sentence imposed by the sentences under appeal is three years with a non-parole period of 18 months.  The Court was told his estimated earliest eligibility date for parole is in June 2016 and his estimated sentence end date is in January 2018.[3]  Thus, in effect, for the entire course of offending since 25 August 2012, for which the appellant went into custody on 4 June 2013, he will serve a sentence of four years six months’ imprisonment and will be eligible for parole after three years.

   [3]It is impossible to calculate precise dates given allowances for lock downs and the like.

Reasons for sentence

1. The sentencing judge set out the circumstances of the relevant offences and set out the appellant’s personal circumstances.  She referred to the fact that at the time of sentence he was 30 years old.  He had left Vietnam when he was two years old and spent five years in a refugee camp in Malaysia before coming to Australia as a six-year-old.  He lived in the housing commission flats where he was exposed to what the sentencing judge described as ‘considerable violence and criminality’.[4]  The family moved to Deer Park and the parents separated.  For a time the appellant was living on the street.  He left school in year 10.  The appellant had undertaken some vocational training and had been employed.  He commenced using ice when 22 years of age and had eventually lapsed into full addiction ‘some years ago’.[5]

   [4]Reasons for Sentence [13].

   [5]Ibid [15].

1. The sentencing judge referred to matters put in mitigation, and in particular to the time which the appellant had spent in custody. 

1. The appellant’s fiancé’s father, Mr Barry, gave evidence on the plea and the judge referred to that evidence.  She considered the question of a community correction order.  What was put was that the appellant would reside in the Great Western district with his fiancé’s family.  The sentencing judge said that the evidence revealed the appellant had breached his bail conditions and reoffended on two occasions whilst bailed to reside with his fiancé’s family.  The judge said:

It was largely for this reason that I consider that a community correction order was not appropriate in your case.[6]

[6]Ibid [21].

1. The judge was conscious of the totality issue and referred to it three times in the course of her sentencing remarks.[7]

   [7]Ibid [24], [26] and [30].

Submissions made

1. The submissions made in relation to the three grounds of appeal overlapped.  It was submitted that notwithstanding that the actual sentences were ‘unexceptional’ and that the sentencing judge had made express references to totality, the inference should be drawn that totality had not been properly addressed.  It was submitted that the sentences imposed were not sufficiently moderated to reflect the time which had already been served.  It was submitted that if all of the offending had been dealt with at the one time, the total imprisonment which has been imposed in the three proceedings would not have been appropriate.  Thus, it was submitted that the 12 May 2015 sentence was manifestly excessive.  It was also submitted that the sentence was manifestly excessive having regard to the appellant’s plea of guilty, his personal circumstances, what the appellant’s counsel described as his ‘limited prior criminal history’, and the sentencing judge’s finding that the appellant’s prospects of rehabilitation were ‘reasonable’ although only if he ‘conquered’ his drug problem.[8]  Counsel for the appellant submitted that the only period of imprisonment that pre-dated the current period in custody (which began on 4 June 2013) was the sentence of one month in June 2006 for breach of a community based order.  The submission made concerning Boulton was also related to the totality issue.  It was submitted that the issues were necessarily linked and that the sentencing judge had failed to address them in that way.  It was submitted that there had been a failure to specifically address the guidelines set down in Boulton.

   [8]Ibid [23].

1. On behalf of the respondent it was submitted that, given the appellant’s criminal history, totality had been appropriately addressed.  The offences were submitted to be very serious.  The amount of methylamphetamine involved was almost five times the trafficable quantity.  The assaults were with a sharp-ended weapon.  There were two separate and premeditated assaults on the one day perpetrated in the company of others, the second using a dishonest ‘ruse’ to draw the victim back into another meeting with the offender.  The appellant had been on bail for two sets of offences at the time.  It was submitted that Boulton requires the exercise of a discretionary judgment and that no error had been shown in this case, especially given the appellant’s antecedents.

Analysis

1. The appellant’s criminal history reveals, in my opinion, that the sentencing judge was fully justified in concluding that a community correction order was not appropriate.  Not only has he breached a community based order in the past, but he has numerous convictions for failing to appear on bail, and his recent history of offending while on bail means it is impossible to have any confidence in his willingness or capacity to comply with conditions if released into the community.  No error has been shown on that ground (ground 3).

1. As to the inter-related grounds concerning totality and manifest excess, it was not suggested that the sentencing judge had overlooked the importance of totality.  She expressly referred to the time the appellant had already spent in custody, and expressly referred to totality on three further occasions.  What was put on the appeal was that a failure to properly consider totality is revealed by the fact that, for all the offences the appellant committed during the relevant period, the sentences imposed on 12 May 2015 produce a consequence that he will be imprisoned for four years six months and will not be eligible for parole until the expiration of three years.  It was submitted that this reveals both a failure to properly address totality and manifest excess.

1. I am unable to accept this submission.

1. The appellant already had a criminal history, including a breach of a community based order and a short period of imprisonment, when he embarked upon the numerous offences which he committed in late 2012 and the first half of 2013.  He first committed the series of offences, which included dishonesty and drug offences, in late 2012 and early 2013, for which he was dealt with at the Sunshine Magistrates’ Court on 4 December 2013.  Whilst on bail for those offences he committed a further two series of offences.  The first series included offences of violence and a drug offence, for which he was eventually dealt with in the County Court on 11 September 2014.  The second series involved violence together with theft and another drug offence, being the offences for which he was sentenced on 12 May 2015. 

1. When he came to be sentenced on 12 May 2015 the appellant had been in prison since 4 June 2013, almost two years, of which only a period of 159 days, or a little over five months, would count as pre-sentence detention in relation to the sentences then to be imposed.  In the circumstances of this case, the sentencing judge was required to have regard not only to the totality of the sentences she imposed in order to achieve an appropriate relativity between the total sentence she imposed and the total criminality of those offences, but to also consider the total criminality of all the offending for which the appellant had been in custody since 4 June 2013 and, if necessary, to moderate her sentences to achieve appropriate relativity between the totality of all the offending and the totality of the sentences.[9]

[9]Mill v The Queen (1988) 166 CLR 59, 62–3; Postiglione v The Queen (1997) 189 CLR 295, 307–308; DPP v Haidari [2013] VSCA [49]–[50].

1. The sentencing judge was conscious of the totality issue.  She said she took the time in custody into account.[10]  She expressly emphasised that her sentence ‘does reflect the principle of totality’.[11]  Do the sentences reveal an error notwithstanding these statements?

   [10]Reasons [26].

   [11]Reasons [30].

1. In effect, the sentencing judge had to consider time in custody of approximately one year six months (4 June 2013 to 12 May 2015 less 159 days) already served for the firearm, driving, dishonesty, trafficking and possession and failing to answer bail offences dealt with in December 2013, as well as for the false imprisonment, intentionally causing injury and possession offences dealt with in September 2014.  With the sentences she then imposed, being a total effective sentence of three years with a non-parole period of 18 months, the appellant would serve a total of four years six months’ imprisonment and be eligible for parole after three years.  Far from revealing error, it seems to me that this represents an eminently reasonable reflection of the total criminality involved.  No error has been demonstrated.

1. The sentences, in themselves, are within the range of sentences open to the sentencing judge, as was frankly conceded.  When considered in the light of the prior offending and the prior sentences they are not revealed to be either manifestly excessive (ground 1), or to infringe the principle of totality (ground 2).

1. In my opinion the appeal should be dismissed.

SANTAMARIA JA:

1. For the reasons given by Whelan JA, I agree that the appeal should be dismissed.

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