R v Le
[2009] VSCA 247
•15 October 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 676 of 2008
| THE QUEEN |
| v |
| TU QUANG LE |
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JUDGES: | ASHLEY and WEINBERG JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 October 2009 | |
DATE OF JUDGMENT: | 15 October 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 247 | |
JUDGMENT APPEALED FROM: | R v Le (Unreported, County Court of Victoria, Judge Jenkins, 3 June 2008) | |
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CRIMINAL LAW –Reckless conduct placing another in danger of serious injury – Recklessly causing injury – Prohibited person in possession of an unregistered firearm – Appeal against conviction and sentence – Section 51 of the Interpretation of Legislation Act1984 – Double punishment – Leave to appeal against conviction granted – Application of sentencing principles – Youthful offenders – R v Verdins (2007) 16 VR 269 – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr G M Hughan | Victoria Legal Aid |
ASHLEY JA:
I will ask Justice Coghlan to deliver the first judgment.
COGHLAN AJA:
On 26 May 2008, Tu Quang Le pleaded guilty in the County Court at Melbourne to reckless conduct placing another in danger of serious injury, recklessly causing injury, and being a prohibited person who both possessed and used an unregistered firearm.
He was sentenced to be imprisoned for three years on the first count, 18 months on the second count, two years on the third count and five years on the fourth count. Eighteen months of the sentence on count 1 and six months of the sentence on count 2 were ordered to be served cumulatively upon each other and upon the sentence on count 4. The sentences on count 3 and 4 were ordered to be served concurrently. The total effective sentence was therefore seven years. A non-parole period of five years was fixed.
On 4 June 2008 the applicant made application for leave to appeal against sentence. On 5 June 2009, Maxwell P granted leave. He is an applicant for leave to appeal against conviction and I will describe him by that title.
On 17 July 2009 the applicant made application for leave to appeal against conviction out of time on counts 1 and 4, based principally upon the consideration of double punishment contained in s 51 of the Interpretation of Legislation Act1984. On 3 September 2009 the Acting Registrar granted an extension of time and ordered an expedited hearing, which was subsequently fixed for today.
The facts may be stated shortly. On 29 March 2007 the applicant purchased a car from Mr Suleyman Ozturk Ozluses. A dispute arose between them about the provision of a roadworthy certificate and the completion of work to make the vehicle roadworthy. The applicant was aggrieved by the process. On 2 May 2007 the applicant and a friend, Michael Tammekand, went to Ozluses' address to demand help with making the vehicle roadworthy. There was a verbal dispute, but the applicant appeared to settle down after Mr Ozluses twice threatened to ring the police. In his opening on the plea, the prosecutor said:[1]
The victim reports that the accused appeared to calm down, so Ozluses returned to the front door, opened the wooden door but kept the security door shut. They talked further, but the accused became angry again and produced what Ozluses described as what looked like a silver pen, but it was thicker and more like the side of my thumb. He states he feared this device was a pen pistol and feared the accused would shoot him.
As he tried to close the front door, the accused discharged the device. Ozluses states, 'I heard a loud bang that sounded like a real gun. I felt a painful blow to my stomach.' Mr Tammekand described the same events: 'I can't remember the exact words, but I could see Tu was very aggressive. The man was yelling as well, when all of a sudden I heard a really big bang, it was loud, and I then heard the man start to moan, make a grunting noise. I knew the sound was a gunshot. I started running out of the front yard.'
The accused and Tammekand fled the premises. They got into the car that Ozluses had sold to the accused and drove off. As they drove away, Tammekand states that the accused told him, 'Just settle down, he deserves it,' and that he had done it to teach him a lesson.
When they got home, Tammekand states that Tu showed him the device and told him he had bought it from a friend for $1500 and that it fired a .22 calibre bullet.
[1]T3l.
Mr Ozluses was taken to the Royal Melbourne Hospital. He had suffered a two- to three-centimetre abrasion to the abdomen. When interviewed on 14 May 2007, the applicant, who admitted that he had bought the car, denied the shooting and tried to set up a false alibi using a friend.
From that statement of the facts it is clear that the actus reus of each of counts 1, 2 and 4 is identical, that is, the firing of the pistol. Counsel for the respondent has properly conceded that conviction on two of the counts is inappropriate. In the respondent's submission they are counts 2 and 4. On the other hand, counsel for the applicant submits that counts 1 and 4 are the counts on which convictions are inappropriate.
I have no doubt that the convictions on two of the counts are inappropriate. Whether that is due to the strict operation of s 51 or because in the circumstances such convictions would constitute a miscarriage of justice does not matter.[2]
[2]See R v Ahmed (2007) 17 VR 454, [20], (Buchanan JA).
The question then arises as to which of the convictions should be set aside. The argument on behalf of the respondent is simple. When the appellant pleaded guilty to count 1, he was convicted of that offence. Accordingly, his later plea on count 2 and conviction on it were inappropriate, so that the count should fail, and the same reasoning applied to counts 3 and 4.
Mr Hughan, who appeared on behalf of the applicant before us, conceded that his preference for count 2 was because count 1 on its face appeared more serious; it dealt with the notion of serious injury, whereas count 2 dealt with causing injury. I suppose some semantic argument might have been advanced to say that both counts could survive, but that does not accord with common sense.[3]
[3]See Pearce v R (1998) 194 CLR 610, [40], (Hayne J).
In this case I would not regard Mr Hughan's concern about the distinction between the two counts as important, and in argument before us he recognised that proposition. The fact of the risk and the fact of the injury come into consideration when looking at either count because the common feature is the discharge of the gun at or towards Mr Ozluses. The maximum penalty for each count is five years.
The conviction on count 1 did occur when the applicant pleaded guilty to it.[4] It seems to me to follow that the respondent's contention about the appropriate count is correct. If I am wrong about that and there is some basis for distinguishing between the counts, whether it be discretionary or otherwise, I am of the view that count 1 more accurately describes the criminality of the conduct of the applicant. In this case the gravamen of the conduct is the risk created by the firing of the firearm into a doorway towards the victim, rather than the harm actually caused.
[4]See DPP v Nguyen & Ors [2009] VSCA 147, [91].
I would grant leave for the applicant to amend the notice of appeal to refer to count 2. I would grant leave to appeal and quash the conviction on counts 2 and 4.
As a result, the applicant falls to be re-sentenced. The maximum sentences are five years on count 1 and 15 years on count 4. The applicant has ten prior convictions from three court appearances, two in the Children's Court. The last two sets of convictions include trafficking in a drug of dependence or its New South Wales equivalent. The applicant had been convicted at the Melbourne Magistrates' Court of trafficking and possession of a drug of dependence, namely diacetylmorphine (heroin), and sentenced to an aggregate sentence of six months' imprisonment which was wholly suspended for 18 months. The earlier New South Wales conviction related to cannabis. It was that conviction and sentence which meant that the applicant was a prohibited person for the purposes of count 3.[5]
[5]See Section 3 Firearms Act 1996 (Vic) definition of ‘prohibited person’.
The applicant is young, now 24 and 21 at the time of the offending. His prior convictions, although relevant, are not particularly serious and do not include any involving violence or the use of weapons. He has now been in custody since May 2007 and this is the first term of imprisonment that he has actually had to serve.
I regard both offences as moderately serious examples of offending of the kind. The weapon was small and readily concealable and has not been recovered. On the plea, a report dated 23 May 2008 from Carla Lechner, consultant clinician and forensic psychologist, was tendered. It was accepted on the plea that the applicant's reaction in using the pen pistol was entirely disproportionate to the dispute about the roadworthy certificate. Emphasis was placed on the proposition that the applicant was immature, with a history of emotional abandonment, physical and mental abuse. Ms Lechner reported that the applicant was born in Vietnam and came to Australia when he was about six years of age. He lived with his mother and her parents. His parents separated shortly afterwards and the applicant and his brother were taken into the care of his father, who then lived in Sydney. His father was violent towards him and the applicant was put into foster care at about the age of eleven. After about six months he was placed in his mother's care, but he had trouble with his stepfather, who was abusive to him. By the time he was in year 9 at school he was living independently with friends, but he returned to his mother's care when she separated from his stepfather. His mother moved to Melbourne and he was left in Sydney. He tried to reconnect with his own father but was unsuccessful. He left school in year 11 when he was about 17.
The applicant had started smoking marijuana at the age of 14 but he gave it up when he was about 17 or 18 because the large amount he was smoking was having an adverse effect upon him. He reported using alcohol as a substitute. He apparently made no reference to heroin, but on the plea his counsel accepted he had used that drug as well. That was consistent with the last of his prior convictions. It appears that following his drug use the applicant demonstrated some symptoms of drug-induced psychosis. Ms Lechner reported:[6]
Towards the end of the interview, when pressed more closely, Mr Le indicated that he was also having some strange experiences strongly suggestive of a drug-induced psychosis. He believed he had not been 'right' since his drug-taking days, in terms of ongoing paranoia and anxiety.
Ms Lechner concluded:[7]
At interview Mr Le presents as cognitively and emotionally immature with a limited ability to reflect on the impact that his behaviour has on both himself and others. He finds it hard to both identify triggers to his negative feelings and to express them appropriately, tending to deny the extent of his internal distress or to block it out with substance abuse. Mr Le is currently evidencing a range of symptoms of clinical depression, this being confirmed by a score at the top end of the moderate range on the Beck Depression Inventory. He reports a long-standing mood disorder. Further psychometric testing indicates that his conceptual thinking and social comprehension skills are in the low average/borderline range. His limited reasoning and judgment skills would be further compromised by a high level of emotional arousal. Mr Le's offending is clearly very serious and appears to have been an extreme response to his perception of threat, in the setting of him being sensitive to danger due to his childhood experiences of abuse and high level of anxiety and paranoia in recent years. Mr Le acknowledges that his actions were wrong, this being a positive sign of his rehabilitation. He remains psychologically fragile, however, and would benefit from medical review in custody and ongoing monitoring of his mood state upon his release. It is recommended that he also engage in counselling to assist him in better managing his mood state and developing more adaptive coping strategies.
[6]Report p 3.
[7]Report p 6.
It is argued on behalf of the applicant that the principles expressed by the Court in Verdins[8] are attracted by that account. The relevant considerations arising from that case here are as follows:[9]
[8](2007) 16 VR 269.
[9](2007) 16 VR 269, [32].
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant in at least the following six ways:
…
…
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
…
…
Having regard to principles 3 and 4, I regard their effect as being limited in relation to this sentence.
I am satisfied that the applicant should be treated as a youthful offender, and it follows that his rehabilitation should loom large in considering the appropriate sentence.[10]
[10]R v Mills [1998] 4 VR 235.
An affidavit was tendered on the plea which indicated that the applicant had done very well since being in prison. Mr Hughan told the Court that the applicant
had become 'a unit billet', which was a sign of his good progress; and, in addition, the applicant is isolated here in Melbourne, most if not all of his family being in Sydney. I note that the applicant has expressed the desire to return to Sydney on completion of his sentence.
I would sentence the applicant as follows: count 1, recklessly place another at risk of serious injury - three years; count 3, prohibited person in possession of an unregistered firearm - two years. I would order that one year of the sentence on count 3 be served cumulatively upon the sentence imposed on count 1. That is a total effective sentence of four years. I would order that the applicant serve two-and-a-half years before being eligible for parole.
ASHLEY JA:
I agree. I add this. As was common ground before us, there was an obvious error in the applicant having been presented on the four counts which were brought against him. The error was compounded when none of the prosecutor, defence counsel or the judge saw the grievous error that was involved in convicting and sentencing this man on the four counts and providing, by accumulation, for very obvious double punishment. As my brother Weinberg remarked in argument, it was a very bad thing that this man, had the appeal not been pursued, would have been subject to serving at least five years' imprisonment in consequence of the error which has now been recognised.
WEINBERG JA:
I agree with the orders proposed by Coghlan AJA and with his Honour's reasons, and I join in the observations made by Ashley JA.
ASHLEY JA:
The orders of the Court are these:
1. The applicant has leave to amend his application for leave to appeal against conviction by substituting, for references therein to count 1, count 2 and, for references to count 2, count 1.
2.The application for leave to appeal against conviction is allowed.
3.The appeal is treated as instituted and heard instanter and is allowed in part.
4.The convictions on counts 2 and 4 are quashed.
5.The appeal against sentence on counts 1 and 3 is allowed.
6.The sentence imposed in the court below is set aside and in lieu thereof the Court sentences the appellant as follows: on count 1 - three years' imprisonment; on count 3 - two years' imprisonment. One year of the sentence on count 3 is ordered to be served cumulatively upon the sentence imposed on count 1.
The total effective sentence is four years, with a period of two years and six months to be served before the appellant is eligible for parole.
7.The other orders made below are confirmed.
It is declared that the period of 885 days not including this day has been served under the sentence imposed and we direct that this declaration and its details be entered in the records of the Court.
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