N C H v The Queen
[2012] VSCA 129
•13 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0008
| NCH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 June 2012 |
| DATE OF JUDGMENT | 13 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 129 |
| JUDGMENT APPEALED FROM | DPP v [NCH] (Unreported, County Court of Victoria, Judge Hannan, 14 December 2011) |
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CRIMINAL LAW – Appeal against sentence – Manifest excess – Whether insufficient weight given to cooperation and undertaking to assist the authorities – Appeal refused – No point of principle.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Mr L C Carter | Lewenberg & Lewenberg |
| For the Respondent | Ms D Karamicov | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Osborn JA to deliver the first judgment.
OSBORN JA:
On 14 December 2011, the appellant, having pleaded guilty to one count of intentionally causing serious injury, was sentenced to four years’ imprisonment by Judge Hannan. Her Honour fixed a non-parole period of two years and declared that but for the appellant’s plea of guilty she would have sentenced the appellant to five years six months’ imprisonment with a non-parole period of three years and four months. The maximum penalty applicable was 20 years’ imprisonment.
The appellant now appeals by leave on the ground that the sentence was manifestly excessive.
The appellant’s victim was employed at a nightclub as a promoter and was responsible for facilitating VIP entry into the club. From October 2010 onwards, he was approached by the appellant and others associated with him on four or five occasions seeking entry to the club. The group was initially denied entry because of a lack of appropriate identification and subsequently refused entry because of the fear they would cause trouble. The appellant and another member of the group were placed on a banned list. At one point, one of the group threatened the victim with future trouble and warned him that he should not bother opening the club again.
On the night of 18 February 2011, the victim was standing at the nightclub entrance holding an umbrella. The appellant and two others ran up from behind the victim and stabbed him repeatedly. Each of the three men was armed with a knife. Each struck blows.
The appellant states, and the Crown does not contest, that he was given the knife a short time prior to the assault and that he was not the prime instigator of the attack.
Nevertheless, it is plain that the attack was vicious and premeditated, utilised dangerous weapons and was undertaken as a joint venture clearly aimed at seriously injuring the victim. Self-evidently, the victim’s ability to defend himself was materially reduced by the fact he was jointly assaulted from behind by three men each wielding knives. In these circumstances, the appellant must bear responsibility for the joint attack in which he participated as a principal offender.
The victim suffered multiple stab wounds including a stab wound to his abdomen which perforated his colon. He also suffered three other stab wounds to his abdomen, a stab wound over the left shoulder and a displaced scapular fracture, a stab wound to his left thigh, and a further stab wound near his shoulder. The wounds were potentially life-threatening but the victim recovered. He has been left with permanent scarring which causes him embarrassment, ongoing psychological effects and a continuing fear that he will the subject of further attack. His victim impact statement expresses in plain terms the seriousness of the consequences of the assault upon him.
The assault was captured on closed circuit television and the appellant was subsequently arrested. He gave notice that he intended to plead guilty prior to the committal hearing. When interviewed, he gave police the names of his co-offenders. At the time the police believed they knew the identity of the co-offenders but the information provided by the appellant was confirmatory evidence of some importance.
On the day of his plea, the appellant made a formal statement identifying his co-offenders. He gave a sworn undertaking to the sentencing judge to give evidence in accordance with that statement.
At the date of offending and of sentence, the appellant was 20. He had come to Australia from China at the age of 17 on a student visa. He fell in with a group of young men (including his co-offenders) who had come from the same province in China. He developed a ‘group mentality’. He stopped his studies and commenced working, a breach of his student visa.
As the sentencing judge accepted, the appellant’s offending thus occurred when he was isolated from his family and at a time when he was still young. In turn, because of this background and a lack of English, he had faced substantial isolation when in custody during 292 days of pre-sentence detention. He also fell to be deported upon his release.
The sentencing judge further concluded that the appellant’s prospects of rehabilitation were good. He had no prior convictions, was still young, had pleaded guilty and had cooperated with police.
Her Honour summarised the relevant matters of mitigation as follows:
33I will commence with the undertaking. Your undertaking to give evidence if called upon to do so is a significant matter and I have reduced the sentence I would otherwise have imposed on account of that undertaking. I direct pursuant to s.5(2AB) of the Sentencing Act that it be noted in the records of the court that you have undertaken to give evidence in accordance with your statement of today's date if called upon to do so in criminal proceedings in accordance with that statement.
34You, by your statements and sworn evidence this morning identify co-offenders, in sworn evidence you have expanded upon the role of each man outside the contents of your original statement and that was done on oath.
35In relation to your undertaking there are clear public policy considerations in encouraging persons to cooperate in the way in which you have this day. The information you have given clearly has potential to assist in the prosecution of other offenders and you are entitled to a significant discount on the basis of the information you have provided combined with your undertaking.
36Your counsel has pointed to a number of matters you are entitled to have taken into account in mitigation. Firstly your plea of guilty which in my view you entered at an early stage, negotiations having commenced prior to a listed committal and advanced to a point where I was told witnesses were not asked to be present on the first morning of the committal as it seemed clear the matter would be a plea. You have by your plea saved the witnesses the ordeal of giving evidence and saved the community the time and expense of a trial. You are entitled to the full benefit of that plea. You have no prior convictions or appearances and you are to be sentenced on that basis.
37You are a young offender and the community must have a very real interest in your rehabilitation. Your rehabilitation must be given weight in the sentencing process and I have acted on that basis. The seriousness of your offending clearly makes other sentencing considerations including general deterrence important in the sentencing exercise but I have still regarded rehabilitation as a matter to which should be given significant weight.
38This is your first time in custody and likely to have significant deterrent effect whatever the duration. I accept for the purposes of sentencing you that your time in custody is made more onerous by your isolation from your family, your lack of English language skills and cultural considerations. The reality of a 20 year old being in a prison population where he can converse freely with little more than a handful of others is significant. It seems that but for your language issues you may well have found yourself eligible for location in a youth unit where programs and activities are more directly aimed at young persons.
39Your undertaking is relevant for the reasons to which I have already referred. I further accept that you have concern for your safety in custody and more globally the safety of your family in China given that the co-offenders against whom you have undertaken to give evidence are it seems all from the same province.[1]
[1]Reasons for sentence, 14 December 2011, [33]-[39].
The principal submission made on behalf of the appellant is that despite the above statements it can be inferred that the sentencing judge gave an insufficient discount for the appellant’s cooperation and undertaking to assist the authorities.
The appellant’s counsel emphasises that the cooperation was of value to investigating police and that the sentencing judge accepted it resulted in concerns for the safety of the appellant himself and his family.
It is further submitted that, whilst acknowledging the gravity of the offending, the necessity for appropriate punishment and the need for general deterrence, a sentencing discount ‘approaching the maximum available ought to have been allowed’.
It is submitted in the written case that if a notional 25 per cent is added to the sentence which her Honour declared would have been imposed but for the plea of guilty then this would result in a sentence of seven years and four months’ imprisonment. If a maximum discount for cooperation in the order of 50 per cent was added to this figure, it would reflect a notional sentence in the order of 11 years.
It is further submitted that the Sentencing Advisory Council report Sentencing Snapshot No 93 – relating to causing serious injury intentionally – demonstrates that between 2004-5 and 2008-9 only 5.25 per cent of offenders were sentenced to a principal term of imprisonment greater than six years six months. Such cases, it is submitted, must be regarded as falling within the worst category.
In R v Johnston,[2] Nettle JA said:
18There is also a further difficulty that, in the absence of legislative prescription or authoritative appellate pronouncement, there is no necessarily correct amount of the informer discount in a given case. While there are decisions which suggest a discount of 50%, or perhaps even as much as two thirds,[3] it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive.[4] In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough.[5] Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question,[6] and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.[7]
[2][2008] VSCA 133.
[3]See, for example, R v Perrier (No 2) [1991] 1 VR 717, 726 (McGarvie J).
[4]R v Cartwright (1989) 17 NSWLR 243, 252–3; R v Su [1997] 1 VR 1, 78–9.
[5]R v Lindstrom [2008] NSWCCA 160 [58]–[60].
[6]R v Downie and Dandy [1998] 2 VR 517, 520–522; cf R v Lim and Ko [1998] VSCA 54 [31]–[34].
[7]R v Johnston [2008] VSCA 133, [18].
There is no precise formula for the quantification of the discount for cooperation. It is one element of ‘a complex of interrelated considerations’.[8] In the present case, the cooperation of the appellant added to the weight that would otherwise be given to his plea as a young offender. It confirmed his remorse and supported the sentencing judge’s conclusion as to his prospects of rehabilitation. It bore on the relative hardship of imprisonment. It was also of utilitarian benefit.
[8]R v Gallagher (1991) 23 NSWLR 220, 227-8.
Nevertheless, as the Crown submits, the judge made clear that she regarded the appellant’s cooperation as a significant matter and there is no apparent reason to doubt that she gave it substantial weight.
Further, as the Crown submits, the stabbing of the victim was a serious example of an inherently grave offence. That gravity also derived from a complex of considerations including the gang nature of the attack, its pre-mediation, the use of knives, the senseless nature of its apparent provocation, the number and severity of the wounds inflicted and their lasting consequences for the victim. In turn, the gravity and character of the offending raised substantial considerations of general deterrence.
Contrary to the written case submitted on behalf of the appellant, this Court should not engage in hypothetical mathematical cumulative discounting in assessing the sentence imposed by the judge. The correct approach is to assess the sentence actually imposed by reference to all the relevant factors including the appellant’s cooperation. To do otherwise would be to endorse a three stage sentencing process rather than a process of instinctive synthesis. It would also fail to acknowledge the interrelationship of relevant factors to which I have already referred. This is not a simple case in which the circumstances of the crime fell to be weighed against a small number of other important matters.[9]
[9]Cf Markarian v The Queen (20050 228 CLR 357, 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
It is further submitted on behalf of the Crown that although sentencing statistics may provide a ‘yardstick’ in broad, they can do no more than this.[10] Moreover the ‘worst category’ of this offence would attract sentences upwards of 15 years.[11] I accept both these submissions.
[10]Hili v The Queen (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ).
[11]DPP v Zullo [2004] VSCA 153, [10].
The ultimate question for this Court is thus simply whether taken as a whole
the sentence imposed was manifestly excessive having regard to the matters properly identified by her Honour.
For my own part, although I accept the sentence was stern, I am not persuaded it was manifestly excessive. The sentence imposed was 20 per cent of the maximum of 20 years’ imprisonment. But for the appellant’s plea of guilty and cooperation with police it was manifestly inadequate to reflect the gravity of the offending in issue and the necessity for general deterrence. Despite the substantial discount that was appropriate to reflect the appellant’s plea of guilty and cooperation, I do not accept that a sentence of four years’ imprisonment with a non-parole period of two years was manifestly excessive.
In my view, the appeal should be dismissed.
BUCHANAN JA:
I agree.
The order of the Court is that the appeal is dismissed.
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