R v Lay
[2008] VSCA 120
•26 June 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 81 of 2007
| THE QUEEN |
| v |
| PHILLIP LAY |
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JUDGES: | NEAVE and KELLAM JJA and OSBORN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 June 2008 | |
DATE OF JUDGMENT: | 26 June 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 120 | |
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CRIMINAL LAW – Sentencing – 21 year old male pleaded guilty to one count of intentionally causing serious injury after assaulting random victim in the city late one night – Appellant stopped car to allow attack on victim – Co-offender used club lock, appellant and another co-offender punched and kicked victim to the head while on the ground – Victim suffered serious head injuries including multiple fractures and brain damage – Appellant sentenced to four years imprisonment, with non-parole period of two years six months – Sustained rehabilitation efforts made since offence – Whether insufficient weight given to guilty plea, admissions, remorse, youth and rehabilitation – Appeal allowed in part, on the basis that non-parole period manifestly excessive, when regard had to youth and excellent prospects of rehabilitation – Non-parole period reduced to two years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Office of Public Prosecutions |
| For the Applicant | Mr O P Holdenson QC | Lewenberg & Lewenberg |
NEAVE JA:
Background
The appellant, Phillip Lay, pleaded guilty in the County Court to one count of intentionally causing serious injury. He was sentenced by a judge of that Court to four years’ imprisonment, with a non-parole period of two years and six months. This an appeal against that sentence.
The offence arose out of a brutal and unprovoked attack by the appellant and two co-offenders on a young man early in the morning in Little Bourke Street, Melbourne. The circumstances of the offending, which were set out in the Crown opening, were as follows.
At around 4 am on Sunday 5 March 2006, the appellant was with his co-offenders, Keith Chong and Jessie Jong, in the city. Earlier in the evening, the three men had been to the Metro nightclub, where they had been drinking. The three men were in the appellant’s car, a red Toyota with a personalised number plate IROAR. The appellant was driving.
As they drove down Little Bourke Street they passed the victim, 23 year old Khalifa Ahmed Yusuf, and two of his friends, a young male and a female, also of African descent. As they did so, the victim called out something to the appellant and his friends. According to the victim’s friends, Yusuf said something along the lines of ‘Hi guys’ or ‘Hello’ in a non-aggressive manner. In the appellant’s record of interview the appellant said that he thought the victim had been swearing at him and his friends in a foreign language.
The appellant stopped the car a short distance ahead of the group. He, Chong and Jong got out of the car and approached Yusuf. Someone pushed Yusuf and then Chong smashed a beer bottle over his head, causing lacerations and bleeding. The appellant and his co-offenders ran back to the car.
As they started to drive off, one of the victim’s friends kicked or banged the rear panel of the car. The appellant again stopped the car and he and his co-offenders got out and ran towards Yusuf and his friends.
Chong had armed himself with a club lock. He struck Yusuf to the head with the club lock and Yusuf fell to the ground. The appellant and Jong then kicked and punched the victim a number of times, mainly to the head, as Chong continued to hit him with the club lock.
After they had finished attacking Yusuf, the three men ran back to the appellant’s car and drove to Jong’s girlfriend’s apartment, where the appellant washed the blood off his shoes and clothing.
Several people witnessed the attack and one of them called the ambulance and the police. The unconscious victim was taken to Royal Melbourne Hospital where he remained on life support for 15 days. He was released on 4 April 2006. As a result of the attack the victim suffered very serious injuries, including brain haemorrhaging, multiple fractures to the head and face, numerous lacerations, missing and broken teeth and severe bruising. Subsequent neurological testing confirmed that the victim continues to have significant cognitive defects as a result of brain damage.
After the attack, the appellant was quickly identified.[1] He was interviewed on 6 March 2006. During that interview he made full and frank admissions, including that he had kicked the victim ‘quite a few times… pretty hard’ and that he had been the last person to kick him. When asked why he had done so he said ‘Because he kicked my car and they were swearing at us.’
[1]A witness who had gone to school with the appellant was coincidentally outside a nearby nightclub and able to identify him.
Grounds of appeal and counsel’s submissions
The appellant relied on three grounds of appeal. These were that:
1.The sentencing judge failed to accord any or sufficient weight to the appellant’s plea of guilty and the circumstances in which the appellant pleaded guilty.
2.The learned sentencing judge failed to accord any or sufficient weight to the appellant’s rehabilitation subsequent to the commission of the offence and his future prospects of rehabilitation.
3.The sentence imposed was manifestly excessive.
The appellant’s counsel relied on grounds 1 and 2 as specific errors, and also as particulars of the claim that the head sentence and non-parole period were manifestly excessive.
Counsel submitted that his Honour had made specific errors by referring to the offender’s guilty plea and accepting that he had good prospects of rehabilitation, but failing to recognise these mitigating factors in the head sentence or in the non-parole period which he imposed. Counsel referred to his Honour’s statement that:
On the count of causing serious injury intentionally, you are convicted and you are sentenced to four years’ imprisonment. The court orders that you serve two years and six months imprisonment before you become eligible for parole. The court has fixed this parole period very much with your prospects of rehabilitation in mind.[2]
[2]Reasons for Sentence [39].
Counsel contended that his Honour could not have fixed a non-parole period amounting to 60% of the maximum term, if he had given appropriate weight to relevant mitigating circumstances.
In relation to ground 1, the appellant’s counsel acknowledged, as he had to do, that his Honour referred to the appellant’s admissions, guilty plea and remorse in his reasons for sentence. However counsel submitted that the sentences actually imposed by his Honour did not take account of the fact that the appellant had made full admissions in a police interview the day after the offence was committed, that he had pleaded guilty and that he was genuinely remorseful. In a letter written shortly before the plea hearing[3] the appellant had referred to his sorrow, shame and regret about the effects of the offence on the victim’s life and future. Although his Honour had said in his reasons that the appellant had ‘particular insight and concern for the sad plight of the victim’,[4] this finding was not reflected in head sentence or non-parole period.
[3]Counsel was unable to advise the Court as to whether this letter had been sent.
[4]Reasons for sentence [28].
The appellant’s counsel made similar submissions in relation to ground 2. Counsel said that the appellant was a youthful offender, being aged 20 at the time of the offence and 21 when he was sentenced. He was using drugs at that time and he was affected by alcohol when he participated in bashing the victim. Following his release on bail the appellant had taken a number of steps to rehabilitate himself. These included stopping his drug use, no longer associating with the people he had been friendly with at the time he had committed the offences, and becoming involved in various programs to assist him to change his behaviour.
Finally, counsel for the appellant said that having regard to all of these matters, the four year sentence of imprisonment imposed by his Honour demonstrated that the learned judge must have erred in exercising his sentencing discretion.
Counsel for the respondent submitted that the claims of specific error made in grounds 1 and 2 were not made out. It was apparent from his Honour’s sentencing that he had taken all relevant matters into account in exercising his sentencing discretion. The appellant’s co-offender Chong, who had been the leader in the attack on the victim, had been sentenced to seven years’ imprisonment for the same offence. While Chong had to be sentenced for this offence as a serious violent offender the fact that his Honour had imposed a significantly lower maximum term of imprisonment on the appellant indicated that he had given significant weight to the appellant’s youth, remorse and good prospects of rehabilitation.
Counsel for the respondent said that the maximum sentence imposed was lenient, having regard to the circumstances of the offence and the gravity of its consequences for the victim. The appellant had repeatedly kicked the victim in the head, and Mr Yusuf had suffered a closed head injury with serious and long-lasting consequences.
Finally, counsel for the respondent submitted that, although the appellant was a youthful offender, the non-parole period imposed by the learned judge fell well within the range of his sentencing discretion.
Conclusion
The specific errors
In my opinion the specific error grounds are not made out. It is clear from his Honour’s reasons that he took account of the appellant’s guilty plea and his good prospects of rehabilitation.
So far as ground 1 is concerned, that is the credit to be given to the appellant for his guilty plea, admissions and remorse, his Honour said that that he had taken the appellant’s plea of guilty into consideration and had applied the appropriate sentencing discount.[5] Further, he said:
The court notes that when you were apprehended by police following your identification by a witness at the scene, you made full and frank admissions. That fact stands to your credit.[6]
[5]Reasons for Sentence [37].
[6]Reasons for Sentence [18].
His Honour also referred to the fact that the appellant had expressed his deep remorse to the victim and had said in a letter addressed to the victim that ‘If I could turn back time and erase that shameful night, I would in a heartbeat but I can’t and for that I am once again deeply sorry.’[7]
[7]Reasons for Sentence [27].
So far as ground 2 is concerned, his Honour carefully dealt with the evidence indicating that the appellant had good prospects of rehabilitation,[8] to which I refer in more detail below.
[8]See Reasons for Sentence [19]-[26],[33],[37].
Where a judge says in his or her reasons that matters have been taken into account in mitigation of sentence, a claim of specific error based on a failure to do so will rarely be made out. Grounds 1 and 2 really amount to claims that the sentence was manifestly excessive because his Honour gave insufficient weight to the appellant’s guilty plea and remorse and to his good prospects of rehabilitation.
I turn, therefore, to ground 3.
Manifest excess
In my opinion the maximum term of four years’ imprisonment was not manifestly excessive. The maximum penalty of 20 years’ imprisonment for causing serious injury intentionally reflects the gravity of this offence. As Batt JA observed in DPP v Lawrence, ‘it should not be overlooked that in this most serious of the non-homicidal injury offences there is the concurrence of serious injury with the intention to cause it.’[9]
[9](2004) 10 VR 125, 131 (emphasis in original).
As his Honour correctly recognised, this was a very serious example of the offence. Mr Yusuf was the victim of a savage attack by the appellant and his co-offenders. He suffered grave head injuries which required him to remain on life support for 15 days. After he was discharged from hospital he had to be transferred to rehabilitative care.
The medical report from Dr Kirily Adam, rehabilitation consultant at the Rehabilitation Medicine Clinic at the Royal Melbourne Hospital refers to the ongoing effects of Mr Yusuf’s closed head injury. Dr Adam says that:
An initial neuropsychological assessment was performed six weeks following the accident. This demonstrated findings consistent with a closed head injury including slowed information speed of processing, reduced concentration and reduced planning skills. A neuropsychological assessment was repeated in the month of October. This demonstrated ongoing reduced information speed of processing, reduced working memory, attentional fluctuations, and reduced planning and organisational skills.
Although Mr Yusuf has demonstrated improvement and recovery following his closed head injury, he does have ongoing cognitive deficits that are currently impacting on his vocational and leisure activities including return to driving.
Before the attack, Mr Yusuf worked full-time, but he is now only able to work more limited hours. His doctor says that the victim may be unable to obtain a commercial truck licence, as he wished to do. Dr Adams reports that:
Mr Yusuf is at a higher risk of developing psychological sequelae including increased anxiety, and reduced mood which can present itself in matters such as withdrawal from social and friendship groups … These cognitive deficits will continue to impact on Mr Yusuf’s choices in life, particularly leisure and vocational choices.
His Honour found that when the appellant viciously attacked the victim his judgement was impaired by his consumption of alcohol. The appellant was not the leader in the attack, but he stopped the car to participate with his co-offenders in the assault on the victim. After Chong injured the victim by hitting him with bottle and the co-offenders got back into the car, the appellant stopped again to allow them to get out and continue the beating. Although the appellant did not use a weapon, as his co-offender Chong did, he repeatedly punched the victim and kicked him in the head while he lay helpless on the ground.
Members of the public are understandably concerned about violent, alcohol-fuelled attacks in public places. The gravity of the offence made it necessary for his Honour to impose a sentence which gave considerable weight to the need to denounce such conduct and to deter the appellant and others from committing similar offences. It was also necessary for his Honour to take account of the seven year term of imprisonment imposed on Mr Chong for the same offence, which this Court has upheld.[10]
[10]See R v Chong [2008] VSCA 119. As noted above Mr Chong was sentenced as a serious violent offender.
I take a different view in relation to the non-parole period, fixed by his Honour. As his Honour found, the appellant is ‘an intelligent young man with a good future ahead of [him]’, who , it seems has ‘a particular insight and concern for the sad plight of [his] victim’.[11]
[11]Reasons for Sentence [28].
Since he committed the offence the appellant has made very impressive attempts to address his offending behaviour. The non-parole period imposed by his Honour had to take account of the following.
·The evidence of Mr Anderson, a drug and alcohol counsellor of 22 years experience, who saw the appellant as a voluntary client on 22 occasions. Mr Anderson said that the appellant had said in one of his early sessions that being granted bail ‘was the opportunity to turn his life around’ and that his consistency and endeavour was ‘remarkable’. He had been a ‘drug abuser’ at the ‘high end of recreational use’ but had now ceased taking drugs.
·Evidence that the appellant had enrolled in and paid for his own participation in an anger management course run by Relationships Australia. Mr Anderson said that since completing that course the appellant had decided to become involved in another men’s behaviour change program.
·The evidence of Mr Hansen, the appellant’s employer. Mr Hansen said that he regarded the appellant as a very good employee and would be sorry to lose him.
·The evidence of Ms De Sant Ange from the WISE employment programme, who said that the appellant was ‘very proactive in his own life,’ that since he had begun working she had ‘noticed a huge change in his self esteem and career direction… and prospects for the future’ and he was no longer associating with the people who were his friends at the time of the accident.
·The fact that the appellant has had a history of employment since he was in year 11 at school and has obtained a two year full-time Diploma of Business (International Business) from Victoria University.
In 2004 the appellant was fined $600 without conviction for a robbery which occurred when he encouraged another person to steal a mobile phone. He has no other criminal record.
The sentence imposed on the appellant had to recognise the grave and life-changing injuries which the victim suffered. But the appellant’s rehabilitation is clearly in the interests of the community.
As Maxwell P said in R v Merrett, Piggott and Ferrari:
[T]he sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this court, by its own sentencing decisions, recognise and reward efforts at rehabilitation. … It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.[12]
[12](2007) 14 VR 392, 403. See also R v Tiburcy; R v Gardner; R v Zeuschner (2006) 166 A Crim R 291, 294 (Maxwell P).
As has been often been said by this Court, rehabilitation is usually a more important sentencing consideration than general deterrence, in the case of youthful offenders.[13] A longer period of parole enables the offender to benefit from supervision and support after he is released from prison.
[13]R v Mills [1998] 4 VR 235, 242 (Batt JA). See also DPP v REE [2002] VSCA 65; R v PP (2003) 142 A Crim R 369; R v Edwards (1993) 67 A Crim R 486.
In this case, the appellant’s youth, stable family background, educational attainments and the considerable efforts he has made since committing these offences suggest that he has excellent prospects of living a useful and productive life in the future.
Although his Honour referred to the above matters, the non-parole period of two years six months did not differ substantially from the non-parole period which might have been imposed on an older offender, with less favourable prospects of rehabilitation, who received the same maximum term.
In my opinion, therefore, his Honour could not have given adequate weight to the appellant’s youth and excellent prospects of rehabilitation in fixing the non-parole period, which was, as a consequence manifestly excessive. I would therefore re-sentence the appellant to a non-parole period of two years.
A reduction of six months in the non-parole period may, on its face, appear to be ‘mere tinkering’. But for a youthful offender who is making considerable efforts to reform, I consider that a 6 months’ reduction of his non-parole period is likely to have a significant impact on the course of his life.[14] I would therefore allow the appeal against sentence, so far as it relates to the non-parole period.
[14]Cf R v Nhat Anh Tran [2008] VSCA 80, [47] (Buchanan JA).
KELLAM JA:
For the reasons stated by her, I agree with the proposed disposition of this appeal as proposed by Neave JA.
OSBORN AJA:
I also agree with the reasons of Neave JA and the outcome proposed by her.
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