Nguyen v The Queen
[2010] VSCA 152
•23 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0166
| KIM NGUYEN |
| v |
| THE QUEEN |
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| JUDGES | ASHLEY and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 June 2010 |
| DATE OF JUDGMENT | 23 June 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 152 |
| JUDGMENT APPEALED FROM | R v Nguyen (Unreported, County Court of Victoria, Judge Pullen, 28 April 2010) |
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Criminal Law – Sentencing – Parity – Manifest excess – 2 offenders charged with armed robbery – 1 also charged with causing injury – Parity principle applied in respect of total sentence – 2¼ years with 10 months minimum not manifestly excessive for lesser offender
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Appearances: | Counsel | Solicitors |
For the Applicant | Mr J P Dickinson SC | Melasecca Kelly & Zayler |
For the Crown | No Appearance (excused from attendance) | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
This is the judgment of the Court.
On 17 April 2009, the applicant and a co-offender robbed a woman of her handbag as she returned to her parked car in Springvale with her 13 month old child in his pusher. The handbag was taken from the front seat of the car by the applicant’s co-offender as the applicant distracted the victim by asking for directions. When the victim tried to prevent the applicant’s co-offender from taking her handbag, the co-offender pointed a 30 centimetre knife at her victim, saying ‘Give me the bag or I’ll kill you’. At about this point the applicant ran off with the handbag after discarding the somewhat smaller knife she was carrying, near the scene.
In the scuffle which followed this exchange, the victim lost her balance and fell to the ground, where the applicant’s co-offender kicked her in the leg and the stomach. As the victim raised her hand, she was stabbed by the co-offender with the knife she was holding. The co-offender said, ‘Let me go, the other girl will come back after you and your son’.
As a result of these injuries, the victim of this robbery required medical treatment, including surgery for tendon damage to her right thumb. Her post-operative treatment involved a plaster cast for some 13 weeks. She also suffered other bruising and abrasions.
The applicant’s co-offender was arrested at the scene by bystanders, and the applicant was arrested later on the same day by police. She told police that she had met her co-offender earlier that day and had planned to travel to Vietnam that evening for which she needed money. Her account to the police tended to minimise her involvement in the robbery, although she conceded that she took the handbag from her co-offender and ran off with it. The handbag was later found in a drain. The applicant’s co-offender told the police that the knives were provided by the applicant from the glovebox of her car in which they had travelled to the scene of the crime. The applicant never conceded this and the sentencing judge made no finding with respect to the provenance of the two knives.
The applicant was charged with armed robbery and her co-offender with armed robbery and intentionally causing injury. Each of them indicated an intention to plead guilty to these charges at a very early stage, and did so before her Honour Judge Pullen in the County Court on 8 April. Her Honour heard a plea in mitigation in respect of each of the offenders and, on 28 April 2010, passed sentence. The applicant was sentenced to two years and three months’ imprisonment with a non-parole period of 10 months on the armed robbery charge. Her co-offender was sentenced to two years and six months’ imprisonment on that charge and 14 months’ imprisonment on the charge of intentionally causing injury. With cumulation she received a total effective sentence of three years imprisonment with a non-parole period of 18 months.
The applicant did not lodge a notice of appeal within time due to an oversight by her solicitor. By an application dated 1 June 2010, she sought an extension of time to render her appeal effective and also sought bail pending the hearing of that appeal. These applications came on before the Court last Tuesday 15 June 2010. It appeared to the Court that the applicant should succeed on her extension of time application, but rather than spend time determining the bail application, it would arrange for an expedited hearing of the appeal itself. Hence, today’s hearing.
Although the applicant’s notice of appeal originally contained five grounds, Senior Counsel for the applicant abandoned three of those grounds at the outset of the hearing, leaving as the only grounds manifest excess and a failure to properly apply parity principles to the determination of the applicant’s sentence having regard to the respective roles of each of the two offenders. However, he also sought to add a further ground, by amendment, in the following terms:
6. The learned sentencing judge erred in taking into account in the applicant’s case the injuries suffered by the victim which were caused by the knife wound inflicted upon her hand by the co-accused.
Although the Crown did not appear on the hearing of this appeal, Senior Counsel for the applicant informed the Court that he had informed the Crown of his application and that its response was neither to consent to or oppose the amendment. The amendment was, accordingly, allowed.
Ground 1
In support of his argument as to manifest excess, Senior Counsel for the applicant submitted that this crime, although serious, was somewhat unusual in that his client had no prior convictions, her motivation to commit the crime was to obtain drugs to which she was addicted (not to go to Vietnam), she was relatively young, had pleaded guilty and expressed remorse and had played a somewhat lesser role in the criminal escapade than that of her co-offender. He referred to various statistics which showed that the sentence imposed on his client fell just under the average sentence for this offence – namely two years and five months.
Senior Counsel for the applicant also argued under this ground that imprisonment would weigh more heavily upon her because she would be separated from her three young children and her family, some of whom needed care and attention. He acknowledged, as had the applicant’s Counsel before the primary judge, that exceptional circumstances could not be established so as to require hardship on the applicant’s family to be taken into account in sentencing, but that hardship on the applicant herself was still relevant.[1]
[1]Markovic v R [2010] VSCA 105.
This ground must be rejected. A sentence of two years and three months’ imprisonment with a 10 month minimum in respect of an armed robbery on a defenceless woman accompanied by a 13 month old child in a public car park cannot be said to be manifestly excessive. This is so even if one takes into account that the applicant is a first offender, has had a troubled past, is undergoing apparently effective drug rehabilitation and did not, herself, inflict the injuries which the victim suffered.
Crimes such as this affront the public conscience. This Court has reiterated on many occasions that the primary function of a sentencing court is to impose a sentence commensurate with the gravity of the crime being punished.[2] The sentence imposed was, in the circumstances, within the exercise of a reasonable sentencing discretion.
[2]R v Polterman (Unreported CCA 2 August 1974); R v Panuccio (Unreported CA 4 May 1998); R v Markovic [2010] VSCA 105, [7] and many others.
Grounds 2 and 6
Senior Counsel for the applicant’s principal argument centred on the fact that the injuries which the victim of this robbery suffered were all inflicted by the co-offender and, that, accordingly, to differentiate her sentence for the armed robbery from that of the co-offender by only three months was wrong in principle. He also pointed to a number of factors personal to each of the offenders which, he argued, should have led to a considerably lesser sentence for his client.
As already noted the applicant’s co-offender faced not only the armed robbery charge, but also a charge of intentionally causing injury. Why this was so is unclear. The criminality of each of these offenders could have been clearly demonstrated had only the armed robbery charge been presented against both, with appropriately disparate treatment in sentencing having regard to the seriousness of their respective offending. Further, in neither opening the case nor in making subsequent submissions to the sentencing judge did the prosecutor clearly delineate the behaviour to which each charge related, as she should have done. Nor did her Honour seek clarification of the way in which the Crown put its case in this respect. This situation led to some confusion in the way the respective offenders made their pleas in mitigation and uncertainty in just what the judge was dealing with in various parts of her sentencing remarks.
Counsel for the applicant in the Court below appeared to accept that his client was equally guilty with her co-offender ‘once the knife has been produced’ – that is to say equally guilty for the armed robbery, a component of which was capable of being the infliction of injury on the victim. He accepted that, although the offenders’ original intention was to effect a theft, not a robbery, knives were carried ‘in the event that something went wrong’. However, he also tried to show a distinction between the two offenders based on the fact that his client was not ‘involved in the act of violence’. This confusion would not have occurred had the prosecutor opened the Crown case by explaining the criminality asserted against each offender in respect of each count on the presentment or if the sentencing judge had insisted on the Crown clearly differentiating the criminality of each offender.
In addressing both offenders in her sentencing remarks the primary judge referred to ‘the victim of your offending’ (emphasis added) as having suffered considerably. Thus, it might have been thought that in sentencing both offenders on the armed robbery charge her Honour had taken into account against both offenders all the consequences of the whole episode. But her Honour later referred to the applicant’s co-offender as having been the only one of the two to have been involved in ‘having the knife, being involved in the scuffle and having taken the handbag’.
A close reading of her Honour’s remarks makes it tolerably clear that, despite some ambiguity in those remarks she did not hold the assault and its consequences against the applicant when sentencing her for the armed robbery. In discussing parity, her Honour specifically referred to the applicant as being ‘not part of the assault’. Both in discussion with Counsel and in her sentencing remarks it appears that her Honour regarded the injuries inflicted upon the victim as having been appropriate for punishment under Count 2 on the presentment – the count of intentionally causing injury, preferred only against the applicant’s co-offender.
The principle of parity between offenders is no more than a particular instance of the legal principle, fundamental to the rule of law, that like cases should be treated alike and unlike cases should be treated differently. In this case the criminality of each of these offenders was sought to be differentiated by the Crown by the laying of a specific charge relating to the victim’s injuries only against the applicant’s co-offender. Those injuries and the way in which they were inflicted could have been taken into account had only a charge of armed robbery been laid against both offenders. In that case the parity principle would have required the applicant’s co-offender to receive a different sentence for her part in the robbery. Viewed in that way, a sentence of three years’ imprisonment with a non-parole period of 18 months for the applicant’s co-offender as against two years and three months’ imprisonment with a ten month non-parole period for the applicant would have appropriately differentiated between the two offenders. That is what, in fact, happened in this case.
Having regard to the antecedents and the personal circumstances of each of these offenders and the role of each of them it was also not inappropriate to differentiate slightly between them in respect of the armed robbery, once the assault and its consequences had been removed and dealt with under Count 2. Unfortunate as the ambiguities referred to and the lack of proper differentiation by the prosecutor of the counts preferred against the respective offenders might have been, no sentencing error has been demonstrated under either ground 2 or ground 6.
Conclusion
In sentencing the applicant the sentencing judge took into account in her favour an apparently successful course of drug rehabilitation treatment, significant family background problems and significant problems concerning her children. The offence of armed robbery is serious. It carries a maximum of 25 years’ imprisonment. The applicant has not demonstrated that the sentencing judge erred in principle with respect to the sentence she imposed, nor has she demonstrated that the sentence bespoke error by its manifest excess.
We refuse the application for leave to appeal against sentence.
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