R v Chee
[2021] VSC 355
•23 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0149
| THE QUEEN | Crown |
| v | |
| YONG CHOY CHEE | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 April 2021 |
DATE OF SENTENCE: | 23 June 2021 |
CASE MAY BE CITED AS: | R v Chee |
MEDIUM NEUTRAL CITATION: | [2021] VSC 355 |
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CRIMINAL LAW — Sentence — Recklessly Causing Serious Injury — Accused seriously injured victim using a knife — Contested facts plea — Whether it was accused or victim who produced knife — Facts adverse to the accused to be proven beyond reasonable doubt — Evidence does not establish that accused produced knife beyond reasonable doubt — Plea of guilty — Burden of COVID-19 restrictions in custody during remand — Limited prior history — Nature and gravity of offending at lower end of the scale for this offence — Deportation upon release from custody — No practical utility in setting non-parole period — Sentencing Act 1991 (Vic) ss 11 and 18 — Formosa v The Queen [2012] VSCA 298.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Parkes (at plea) Mr N Hutton (at sentence) | The Office of Public Prosecutions |
| For the Accused | Mr R De Vietri | Gallant Law |
HIS HONOUR:
Yong Choy Chee, on 3 February 2021 you pleaded guilty to one charge of recklessly causing serious injury to Hardeep Singh (‘Singh’). That offence was committed on 11 November 2016.
The maximum penalty for this offence is 15 years’ imprisonment.
On 6 April 2021, I heard a prosecution opening and submissions on the sentence that should be imposed on you. Your counsel also made submissions on your behalf. The factual basis of your plea was not agreed between parties. It was common ground that you had a verbal argument with Singh after he knocked on your bedroom door, which escalated to a physical confrontation resulting in you recklessly causing serious injury to Singh with a knife. However, you disputed the prosecution’s allegation that you were the one who produced the knife during the altercation. You asserted that Singh was the one in possession of the knife when he knocked on your door, and that in the course of the altercation you took possession of the knife and seriously injured him in what your counsel described as an act of “excessive self-defence”. The sole factual issue for me to determine was whether it was you or Singh who produced the knife. Both you and Singh gave evidence on oath at the hearing of the plea.
Counsel for the prosecution produced and tendered a letter from Singh but it was not in the correct form to be regarded as a victim impact statement.[1] Any deficiencies in the letter were however of little consequence as Singh gave viva voce evidence at the hearing.
[1]Letter of Hardeep Singh (undated).
It is now my responsibility to sentence you for this offending.
Burden and standard of proof for contested facts pleas
In Formosa v The Queen, Whelan JA summarised the principles that apply on a contested facts plea as follows:[2]
[2][2012] VSCA 298 [8].
· Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.
· It is standard practice to use the depositions and related exhibits as the basic materials.
· Should either party seek to have the sentencing judge take any additional matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.
· A contested factual assertion upon a plea must be proved by admissible evidence. There is, however, no requirement that the evidence should all have been given on oath, or that there should have been a prior opportunity for cross-examination.
· A sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
As such, the prosecution must prove beyond reasonable doubt that you produced the knife for me to sentence you on this basis. I must be satisfied on the balance of probabilities that Singh was originally in possession of the knife and that you took possession of it before seriously injuring him for me to sentence on the basis of your version of events.
Circumstances of the offending
On Friday 11 November 2016, you were at the premises at which you were boarding at 17 Elm Grove in Springvale. Singh lived there as did three other boarders including brothers Ken and Danny Wong. You and Singh are both Malaysian citizens and had both entered Australia on tourist visas which had expired.
During the evening of 11 November 2016, Singh was in the kitchen with the other boarders and complained to them that he had given your cousin money to obtain further visas, but they had not been finalised and he was angry about this.
At about 11:00pm you were in your room when Singh knocked on your door and there was a confrontation, apparently about the visa issue.
During the confrontation, you stabbed Singh with a knife. On the hearing of your plea, a factual issue arose for me to resolve regarding which of you produced the knife. You deny you produced the knife and so does Singh. This is an issue of some significance. It was common ground between the parties and consistent with legal principle that as to the standard of proof in resolving this issue, I may not consider facts adverse to you unless they have been established beyond reasonable doubt.
You described someone knocking on your bedroom door at 11:00pm on the night of the incident. You described it as the door being hit severely. You said you opened the door and saw Singh pointing a knife at you. You said you felt your wrist was cut and then you closed the door. You noticed that Singh was “weak” and that he had dropped the knife. You took the knife. You said you opened the door and were “flipping” the knife in front of him. He was trying to grab the knife. You could see he was drunk. You described yourself as being fearful.[3] You later identified photos of the scars of injuries to yourself which you said Singh inflicted.[4]
[3]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 15.
[4]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 17-18.
In cross-examination, you agreed you ate an evening meal in your room where you had a fork but not a knife. You said you did not want an altercation with Singh but just wanted to sleep. You said you were not sure whether the Wong brothers were in the kitchen when the incident occurred though the kitchen is quite close to you room. You claimed not to be sure whether you had stabbed Singh or not. After you picked up the knife you said you were unable to close the door because Singh was bumping against it with great force.[5]
[5]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 19-24
Singh’s evidence was that you went to his room on the night of the incident with a knife and stabbed him. He denied he went to your room. He also denied that he inflicted any knife wounds on you. He said he first saw the knife when you attempted to stab him with it. Having said he forgot which hand you had it in, he then said it was your right hand. He said he never had possession of the knife.[6]
[6]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 47-51.
In his evidence, Singh said that on that day of the incident he had not consumed any alcohol and was going out to buy beer when the “attack” happened. He said he was not angry but “a bit upset”.[7]
[7]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 50-51.
Singh was cross examined and was asked about his assertion at the committal hearing that he had not worked in Australia and had a valid visa to be in Australia as at 11 November 2016.[8] That evidence would appear to have been a lie. He also claimed had not consumed any alcohol on 11 November 2016.[9] Later evidence indicated that he had a blood alcohol level of 0.16% which, on any view, is a very high reading.
[8]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 49-50.
[9]Transcript of proceedings, DPP v Yong Choy Chee (Supreme Court of Victoria, Lasry J, 7 April 2021) 50.
In addition, the evidence at the committal proceeding of the Wong brothers was that Singh was angry and that he went to your bedroom. Ken Wong said he heard Singh knocking on your door. He also heard Singh angrily demanding that you open the door. Danny Wong said that Singh looked like he was trying to attack you.
I would have to find Singh’s evidence compelling to be satisfied beyond reasonable doubt that you produced the knife. I did not find it compelling. The amount of alcohol he had consumed coupled with his claim that you went to his room, which clearly cannot be the case, means that I cannot act on his evidence.
I will therefore sentence you on the basis that however the knife came to be involved in the incident, it was not because you had it in your possession at the commencement of the altercation. The most likely explanation is that Singh had the knife when he came to your room and dropped it when his hand was caught in the door during the argument. After that occurred it is likely you took possession of the knife and seriously injured him.
After the incident between you, Singh collapsed on the kitchen floor. Danny Wong rang the landlord to explain what had happened. The landlord then called 000. Police and paramedics arrived at the scene at 11:46pm and 11:52pm, respectively. Singh was taken to the Alfred Hospital in a serious condition. He was found to have no palpable pulse and no signs of life at 12:24am, at which time doctors performed cardiopulmonary resuscitation for 24 minutes until he was revived. Singh suffered significant blood loss and underwent surgery to repair his wounds. He remained in intensive care for 6 days and did not leave hospital until 28 November 2016.
Singh was found to have suffered multiple injuries which in combination fall within the description of being serious. They included:
· an incision to the left scalp;
· an incision to the lower lip which measured 2 centimetres;
· an incision to the left temple;
· an incision to the left shoulder measuring 3 to 4 centimetres resulting in severance of an artery in the armpit region;
· substantial blood loss due to ongoing bleeding from that artery;
· an incision to the right lower chest measuring 2 centimetres;
· an open wound to the skin over the right cheekbone, with cheekbone visible; and
· a laceration to the left temple and a pneumothorax to the left and right lungs.
Singh was provided with a 90-unit blood transfusion and he underwent surgery to repair his wounds. A blood sample was taken from Singh at 1:25am. The sample was later analysed and he was found to have a blood alcohol concentration of .166 per cent. As I have already observed, that is a very high reading and may explain his conduct to some degree.
Singh needed time in the intensive care unit and was in hospital for 17 days until he was discharged. After that he underwent outpatient treatment and rehabilitation. He sustained scarring and permanent damage to his left shoulder. I make clear that I have considered the effect of this incident and, in particular, these injuries on Singh. He has a permanent reminder of this conflict with you and, no doubt, that will always be difficult for him.
Dr Jason Schreiber, forensic clinician at the Victorian Institute of Forensic Medicine, expressed the view that without the medical treatment by the ambulance paramedics and in hospital, Singh would have died. Singh sustained “serious life-threatening injury”.
Plea of guilty
You were arrested by police and charged with attempted murder. You contested your committal hearing on that charge as you were well entitled to do. You were committed for trial on that charge in this Court and then, after some judicial assistance, the matter resolved. Notwithstanding that history, I accept your counsel’s submission that your plea of guilty to this charge does demonstrate remorse and regret on your part and otherwise has utilitarian value. I also agree that, particularly during the COVID-19 pandemic, pleas of guilty such as yours carry significant weight as they enable scarce Court resources to be allocated to other matters.
Personal circumstances
You are 35 years of age and are from Malaysia. After living in the town of Jerantut with your family all your life you came to Australia in 2016. Your parents are rubber plantation workers and very poor. After your schooling you worked both in the rubber plantations and then as a mechanic. You saved enough money to come to Australia in the hope of finding work and earning more than was possible in Malaysia. You entered Australia on a tourist visa and that visa had expired when this incident occurred. Like Mr Singh, you were therefore in Australia unlawfully and your deportation back to Malaysia is inevitable.
Upon arrival in Australia, you found work and accommodation at the house where this offence occurred.
After the offending occurred on 11 November 2016, you went to Sydney, anxious about the potential consequences of what had occurred. You worked as a chef and apparently worked hard. You were arrested on 7 February 2019 and have been in custody since.
Your time in custody has been difficult primarily because you speak very limited English. You have suffered loneliness and isolation. In addition, custody has been difficult for most prisoners in the era of the COVID-19 pandemic as attempts are regularly made to ensure that the virus does not infiltrate prisons. That has meant that already limited freedoms are further curtailed.
You are in regular contact with your family, as often as twice per week. Your inevitable deportation from Australia upon your release means that you will return to your original home in Malaysia and reunite with your family. This is something you are looking forward to.
You have no current mental health, drug or alcohol issues. You have a limited criminal history from Malaysia, however that history does not include any violent offending. To the extent that it can be said you have any need for rehabilitation, your prospects are very good.
Conclusion
I sentence you on the basis that Singh confronted you at the door of your room on the night of 11 November 2016. He was angry about the visa issue and, in all likelihood, had a knife in his possession. During the altercation he lost possession of the knife and you picked it up. You then inflicted wounds on him during the altercation as you described. It follows that what occurred was spontaneous and you were acting in response to his original threat, albeit that you overreacted once you had possession of the knife and a degree of control of the situation.
Whilst the offence of recklessly causing serious injury is inherently serious, particularly given the nature of the injuries in this case, I regard the nature and gravity of your offending as at a lower scale for this offence. You did not provoke the confrontation and I am not satisfied that it was you who introduced the knife into the conflict though you later used it. The prosecutor had made her submissions about the seriousness of the offence based, among other things, on the premise that I should conclude that you produced the knife. That is not conclusion I reached.
You still have much of your life ahead of you and I think it likely you will live in a law-abiding way. Further, I accept that you are remorseful for what occurred and for injuring Singh. In your sworn evidence you said you were regretful for what you had done and for causing Mr Singh injury and I accept that you are.
So far as your deportation from Australia is concerned, I do not understand that whilst you have been in custody the prospect of deportation has been the hardship it sometimes is. As I follow it, you welcome your return to Malaysia. What has been difficult for you in custody has been your isolation, inability to use English and lack of personal contact other than by phone.
In my opinion, the appropriate sentence is one of three years imprisonment and that is the sentence I will impose on you. Section 11 of the Sentencing Act 1991 (Vic) requires me to fix a non-parole period for any sentence which exceeds imprisonment for two years or more, “…unless [I] consider[s] that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate”.[10]
[10]Sentencing Act 1991 (Vic) s 11(1).
Your history means that upon the expiration of any non-parole period, were I to fix one, you will almost certainly be deported back to Malaysia. Your return to Malaysia is in your interests and would further your rehabilitation to the extent that it is needed. In those circumstances see no purpose at all in fixing a non-parole period which will have no functional effect on you. It would be inappropriate.
Sentence
On the charge of recklessly causing serious injury, I therefore sentence you to three years’ imprisonment.
Pre-sentence detention
You have been in custody continuously since 7 February 2019. As such, I declare 867 days as served by way of pre-sentence detention, not including today.[11]
[11]Sentencing Act 1991 (Vic) s 18.
6AAA statement
Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to four years and six months’ imprisonment with a non-parole period of three years and six months.
Ancillary orders
I make the disposal order sought by the prosecution in the terms it has been amended at this hearing.
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