R v Mao
[2006] VSCA 36
•3 March 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 105 of 2005
| THE QUEEN |
| v. |
| RETH MAO |
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JUDGES: | CHERNOV and EAMES, JJ.A and MANDIE, A.J.A | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 February 2006 | |
DATE OF JUDGMENT: | 3 March 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 36 | |
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CRIMINAL LAW – Sentencing – First presentment contained count of causing serious injury intentionally – Second presentment contained similar or related counts arising from second incident – Whether sentencing error as to general deterrence being used to convey a message to a specific community – Whether sentencing error on first presentment by having regard to circumstances of second presentment – Whether sentences manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T.E. Wraight | Victoria Legal Aid |
| For the Respondent | Mr G.J.C. Silbert | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
CHERNOV, J.A.:
I have had the advantage of reading in draft form the reasons for judgment of Mandie, A.J.A and agree that, for the reasons given by his Honour, the appeal against sentence should be dismissed.
EAMES, J.A.:
I agree with Mandie, A.J.A., for the reasons stated by his Honour, that the appeal should be dismissed.
MANDIE, A.J.A.:
The appellant pleaded guilty in the County Court of Melbourne to the charges contained in two presentments. He had no prior convictions.
The offence in the first presentment was that the appellant, between 30 June 2004 and 1 July 2004, without lawful excuse intentionally caused serious injury to his wife (Kosal Tep), contrary to s.16 of the Crimes Act 1958. The maximum penalty for that offence is twenty years imprisonment.
The second presentment contained four counts. The first count was that the appellant, on 8 August 2004, without lawful excuse intentionally caused serious injury to his wife. The second count was that on 8 August 2004 without lawful excuse he recklessly engaged in conduct, namely driving a motor vehicle at Rohan Mascarenhas and Jason Sawyer that placed them in danger of serious injury, contrary to s.23 of the Crimes Act. The maximum penalty for that offence is five years imprisonment. The third count was that on 8 August 2004 he intentionally and without lawful excuse damaged a brick fence belonging to Barbara Waters, contrary to s.197(1) of the Crimes Act. The maximum penalty for that offence is ten years imprisonment. The fourth count was that, on 8 August 2004, “being the driver of a motor vehicle and [where] owing to the presence of that motor vehicle an accident
occurred as a result of which Kosal Tep suffered serious injury [he] failed to immediately render [such] assistance as he could”, contrary to s.61(1)(b) of the Road Safety Act 1986. The maximum penalty for that offence was then two years imprisonment.
After hearing a plea in mitigation, the Judge on 8 April 2005 sentenced the appellant as follows on the second presentment:
·count 1, intentionally causing serious injury to his wife – four years imprisonment;
·count 2, recklessly engaging in conduct placing persons in danger of serious injury – two years imprisonment;
·count 3, intentionally damaging property – three months imprisonment;
·count 4, failing to render assistance – three months imprisonment, driver’s license cancelled and disqualified from obtaining another driver’s license for a period of two years and six months.
His Honour directed that six months of the sentence imposed on count 2 be served cumulatively on the sentence imposed upon count 1. The effective head sentence on the second presentment was thus four years and six months.
On the first presentment the appellant was sentenced to two years imprisonment and his Honour directed that eighteen months of that sentence be served concurrently with the total effective sentence imposed under the second presentment, in other words, as the Judge said, six months of that sentence was to be cumulative upon the total effective sentence on the second presentment giving rise to a total effective sentence of five years imprisonment. The Judge fixed a non-parole period of two years and six months and directed that 250 days be reckoned as having been already served under the total sentence.
On 14 October 2005 a Judge of this Court granted the appellant leave to appeal pursuant to s.582 of the Crimes Act. The appellant’s grounds of appeal are as follows:
(1)In all the circumstances the head sentence of 5 years and the non-parole period of 2 years and 6 months are manifestly excessive.
(a)the learned sentencing judge did not give any or any sufficient weight to:
(i) the plea of guilty;
(ii) the appellant’s lack of prior convictions;
(iii)the appellant’s medical condition and the effect of his medication on his moral culpability
(iv)the appellant’s personal and cultural background and
(v)the appellant’s prospects of rehabilitation.
(b)Conversely, the learned sentencing judge placed too much weight on specific and general deterrence.
(2)The learned sentencing judge erred in using the principle of general deterrence to convey a message to a specific community (the Cambodian community) rather than to members of the community generally.
(3)The learned sentencing judge erred when fixing sentence on count 1 on the first presentment by:
(a)failing to treat the single count on the presentment as a first offence; and
(b)allowing the circumstances of the second set of offences (second presentment) to influence his discretion in sentencing on the first offence resulting in a disproportionate sentence on the first offence.
The appellant was born on 3 May 1968 in Cambodia where he had horrific experiences as a child. He came to Australia in 1989 as a refugee. He married Kosal Tep in about 1992 and they have one son. The appellant had stable employment until March 2003 when he was diagnosed as HIV positive and since then he had had some work but had largely relied on sickness benefits, as a result of serious ill health related to his condition. His relationship with his wife, both general and sexual, also suffered. The appellant was treated with a drug, Efavirenz, and the drug level in his blood at the time of his offending was in the toxic range. The circumstances of the offending were as follows.
The appellant and his wife resided in Yarraman Road, Noble Park. On the night of 30 June 2004, the appellant and his wife were in bed together watching television. Between 9 and 9.30pm his wife turned off the television, deciding to go to sleep. The appellant wanted to have sex with his wife who told him that she did not wish to do so. The appellant became angry and grabbed her by the throat, climbing on top of her at the same time. The appellant then took hold of her with one hand and punched her three times, once to each temple and once to the back of her neck.
The appellant then got off the bed and picked up a leather belt with a buckle and hit his wife repeatedly to the lower back. He then picked up a handbag and hit her five or six times to the side of her body. While thus assaulting her, the appellant was abusing his wife and telling her that she had betrayed him.
The appellant continued to swear at his wife and abuse her until about 4am, during which time she stayed in the bed, apart from one trip to the toilet. The appellant’s wife was frightened and two attempts to leave the house were ineffectual.
At about 7am the appellant appeared to be asleep so his wife got out of bed and left the house through the back door. She ran to the end of the street and headed towards the Yarraman Railway Station, but became disoriented and returned to Yarraman Road where she saw the appellant, who pursued her, grabbed her by her arms and tried to drag her to his car. The appellant was observed by a taxi driver who saw him on top of his wife on the nature strip, wrestling with her and punching her to the face. The taxi driver got out of his taxi and approached the scene. The appellant got up, still holding his wife’s wrist and told the taxi driver “It’s okay, she’s my wife.” The taxi driver assisted the appellant’s wife, who was in a distressed state, into his taxi and drove her to the Springvale Police Station. The appellant then got in his car and attempted to follow the taxi but was unsuccessful.
The appellant was arrested later on that day, 1 July 2004. When interviewed, with the assistance of an interpreter, he made only partial admissions and denied some of the more serious aspects of the incident.
As a result of the foregoing events, the appellant’s wife received bruising to both eyes, both arms, her right buttock and left thigh and she also experienced back pain. She was treated by her local doctor for these injuries.
The above incident formed the subject of the offence charged in the first presentment. The appellant and his wife separated after this incident and the appellant was granted bail after his arrest in relation to this charge.
Some five weeks later, on the evening of 8 August 2004, the appellant’s wife and a friend were in a restaurant in Glen Waverley. They were joined by the appellant who had come there in his green Lexus motor vehicle (“the Lexus”). After a short discussion the three of them left the restaurant at the suggestion of the friend.
When they got outside the restaurant, the appellant became angry and began to question his wife about who she was having dinner with. The friend left. The appellant and his wife then walked towards the Lexus and the appellant asked his wife to drive him home because he had an injured eye.[1] However she refused and offered the appellant money for a taxi. The appellant became angry and punched his wife in the stomach and grabbed her by the throat, causing her to fall to the ground. When this occurred some passers-by intervened and one of them told the appellant to leave her alone. The appellant walked away. Two of the passers-by, Rohan Mascarenhas and Jason Sawyer (see count 2 of the second presentment) assisted the appellant’s wife by walking her along Montclair Avenue, Glen Waverley towards a local church where one of them worked. This street was a two way single lane residential street.
[1]There is evidence of the appellant having injured his eye with a knife although there appear to have been differing explanations by him of the circumstances.
As the appellant’s wife and the two men were walking along the footpath in Montclair Avenue the appellant appeared driving the Lexus and as he approached them the Lexus suddenly turned and accelerated onto the footpath towards them, making a loud noise with the wheels spinning and screeching.
As the appellant’s wife and the two men saw the car approaching they tried to get out of the way. The two men managed to get clear, but the appellant’s wife was struck to the front of her legs by the Lexus and thrown over a low brick fence at the front of a house in Montclair Avenue, next door to the church. The appellant’s wife scrambled up and with the help of the two men managed to get into the church. The foregoing events gave rise to counts 1 and 2 of the second presentment.
After the collision with his wife the appellant’s Lexus continued through the fence and came to rest against a tree, causing about $850 worth of damage to the fence (count 3).
The appellant tried to reverse off the fence but when unable to do so he left the scene on foot (count 4).
The appellant’s wife was taken by ambulance to Monash Medical Centre where she underwent surgery. She sustained an open laceration deep to the bone and six centimetres in diameter. She required an open washout of the wound under general anaesthetic and suturing and was treated with antibiotics for twenty-four hours. She had five days of rehabilitation in hospital. The accused was arrested later that day and during an interview admitted holding his wife outside the restaurant but denied driving the car at her deliberately. He said that he had lost control of the car because the road was slippery.
In a victim impact statement dated 31 March 2005, the appellant’s wife said that, since the appellant hit her with his motor car, she had had many medical problems relating to her left ankle, left knee and walking in general. There was still much pain in her leg and she found it hard to stand for long periods. Before the incident she had never had such problems. She remained frightened and was always looking over her shoulder.
On the plea the Judge before him a number of reports. There was a detailed report from Michael Crewdson, a psychologist and psychotherapist, referring inter alia to the appellant’s personal and cultural background. Mr Crewdson said that the appellant had been in Australia since 1989 but had essentially maintained his Cambodian identity, mixing in a highly concentrated social subgroup. Mr Crewdson reported that:
“[The appellant] said that he believed that if [his wife] refused his advances that night [i.e. on 30 June 2004], it would indicate that she was involved with someone else. He said that he knew there had been approaches made to her. When her refusal to have sexual intercourse confirmed his suspicions, he said he was upset and acted to teach her a lesson.
[The appellant] told me that in Cambodian culture this was appropriate. Even today he said, a man who caught a wife in an adulterous situation could kill both parties and receive a diminished sentence.
[The appellant] did acknowledge that he knew that this was not appropriate in Australia but said that he had been so distressed that he acted as a Khmer man would have done.”
There was also a report from Associate Professor Anne Mijch, Infectious Diseases Physician and Head of Victorian HIV Service, Alfred Hospital. Dr Mijch saw the appellant on 25 November 2004 at Port Philip Prison. She described the appellant’s drug therapies since his HIV diagnosis in March 2003 and said that he had been on efavirenz since April 2003. She said in her report:
“[The appellant] presented as very depressed and in low mood complaining of marked nightmares and auditory and visual hallucinations of an evening. He describes, since May 2003, a progressive difficulty with maintaining memory, especially in the morning and a feeling of ataxia. His anger management has been very difficult for him and he is unable to cope with his marital relationship, both worried about his HIV status and also his changing personality…
I assessed him as having depression with cognitive and neuropsychiatric complications of efavirenz. I have organised a trough efavirenz level and reduced his dose from 600mg to 400mg. I believe this may well be a contributing factor to the change in personality, decreased ability to make decisions and neuropsychiatric problems. I have asked the psychiatrist to review him.
[The appellant] does have an efavirenz level in the toxic range … I have asked the Medical Department to change his efavirenz to atazanavir.”
There was also a report from Dr Danny Sullivan, consultant psychiatrist, who saw the appellant on 11 February 2005 and who said, inter alia:
“Having further consideration as to the effects of efavirenz on his neuropsychiatric state, Professor Mijch has indicated a number of manifestations of efavirenz toxicity, which may have influenced his mental state. I have reviewed the literature on efavirenz and its neuropsychiatric manifestations. It seems entirely probable that his mental state was affected by this medication. Given the spectrum of adverse reactions described, I think it most likely that efavirenz may have exacerbated his depressed mood. However the depression appears to have multiple causes, including relational problems, the adjustment to being HIV positive, ill health, unemployment, and medication side effects. I would not think it likely that the medication alone was responsible for his lowered mood, and base this opinion partly upon the temporal sequence of events described to me by [the appellant].
…
Although [the appellant], by my reasoning, does not have available the defence of mental impairment, I am guided by Professor Mijch’s description of the effects of efavirenz from her extensive experience in dealing with people prescribed this medication, which frequently causes significant disturbance of sleep and mood. I think it mostly likely that [the appellant’s] general wellbeing was effected by toxic levels of this medication, which may well have impeded his sleep and drained his psychological reserves, might have accentuated his concerns about his wife’s fidelity and caused significant impairment in his alertness such that he might misinterpret information. Nevertheless, I do not think that these are pertinent to a mental impairment defence, but may be of relevance in sentencing.
…
You have sought an opinion on his prospects for rehabilitation and the likelihood of him re-offending. [The appellant] is isolated from Cambodian peers and fixated upon the breakdown in his relationship. I would regard his prognosis guardedly: it will be improved if he is able to come to terms with the likely end of his relationship and develop plans for the future. I did not have a sense of this being likely at my meeting with [the appellant], and rather regarded him as preoccupied with his wife returning to him. I was struck by his distress and believe he will require counselling and the passage of time to alter his hopes for a relationship resolution.”
On the plea the appellant’s counsel stressed five factors to the sentencing Judge: “the fact of the matter being that [the appellant is] a first time offender, his ill health, his plea of guilty, the cultural impact on the nature of relationship and the nexus between the neuro-psychiatric complications and his offending.”
In his sentencing remarks, the County Court Judge referred to the appellant’s pleas of guilty and the absence of prior convictions and said that those matters must go in the appellant’s favour. In relation to the pleas of guilty the Judge said that he would give the appellant a discount for them but:
“upon reading carefully all the psychiatric and psychological material I am not satisfied that there is a great deal of remorse. You have persisted in justifying yourself to a degree.”
In relation to the incident on 30 June 2004 (the subject of the charge in the first presentment) the Judge said:
“You were abusing her throughout. The injuries sustained were pain and a great deal of bruising to her thighs, buttocks and back.
Whilst it could not be said that the injuries are at the high end of the range of serious, they are certainly significant.”
After describing the circumstances of the incident on 8 August 2004 (the subject of the second presentment) the Judge said:
“Arising from that incident is the intentionally causing serious injury to your wife, the reckless endangerment to the two men, the damage to the fence and your leaving the scene without rendering assistance. On reading the psychological and psychiatric reports, you appear to have maintained that it was accidental. In my view, to plead guilty where that has been the position you have maintained still attracts a discount. You seem unable or unwilling to accept the full responsibility of what you did, and that is why I am concerned about remorse.
A lack of remorse does not aggravate an offence, it simply does not give you a mitigatory factor which is often present to varying degrees. I have before me a victim impact statement from your wife which outlines the injuries that she sustained and the psychological damage that these incidents have caused her. She is afraid of you, with just cause. She tries to go out with friends so as not to be alone. It is important in my view to note that the incident involving the motor vehicle occurred after you had already been arrested and charged on the “belting” that you had previously given her and had spent six days in gaol to think about it.”
The Judge went on to speak of the seriousness of the offences and, in some detail, the various reports concerning the personal circumstances of the appellant. The Judge accepted that he was affected by the drug, efavirenz, at the time of the offending and that this reduced the appellant’s moral culpability.
The Judge then made the following statement which attracted criticism from counsel for the appellant (particularly concerning the sentence italicised below):
“Underpinning that plea and the matters relating to your childhood and your contraction of HIV are cultural features. You have expressed to a number of people, including Mr [Crewdson], a clinical psychologist, that part of your reactions were due to your cultural background of they being the right, in effect, of a husband. It is a double edged sword. One must have sympathy and look carefully at the conditioning of a person who commits such offending. Again it reduces moral culpability. However such conduct cannot be excused in this community.
General deterrence takes on an even more significant role if there are likeminded people within the Cambodian community.”
The Judge concluded by saying that the appellant was a danger to his wife at the present time but that on proper dosages of medication this situation should be ameliorated and there were good prospects for rehabilitation, in effect, in the long run. The Judge concluded, before passing sentence:
“However, in the ultimate these are serious offences. You clearly have anger management problems and I cannot impose a sentence which does not reflect just how seriously this community regards such offending. Having said that I reiterate that I have moderated it because of the great difficulties you have had to deal with in your life.
In the course of sentencing the appellant the Judge indicated that for the reasons that he had outlined he proposed to give the appellant a longer than usual opportunity for parole.
I will deal with the grounds of appeal in the order in which they were argued by counsel for the appellant.
Ground 2 essentially depends upon an interpretation of one sentence in the Judge’s sentencing remarks, namely, that general deterrence takes on an even more significant role if there are likeminded people within the Cambodian community. It was submitted that there was no evidence before the Court as to any practice or attitude among the Cambodian community in Victoria. It was further submitted that the Judge fell into error by giving general deterrence “more significant weight” because the appellant was part of a specific community group and the principle of general deterrence should not be used to convey a message to a specific ethnic community by imposing a sentence on an individual who is regarded as an appropriate vehicle essentially because he is a member of that ethnic community.
Counsel for the appellant referred to R v Truong, in which Vincent JA said: [2]
“ … the principle of general deterrence … is concerned with the engagement in the prohibited conduct by members of the community generally. It should not be used to convey a message to a specific ethnic community by the imposition of a deterrent sentence upon an offender who is regarded as an appropriate vehicle essentially because he is a member of that community.”
[2][2005] VSCA 147 at [17] ; Counsel also referred to R v Fuller-Cust (2002) 6 VR 496 at [78] per Eames JA.
Counsel for the appellant conceded that the Judge would not have erred if his Honour’s remark simply related to the possible consequence of the sentence and did not mean or indicate that he was increasing the sentence, or using the sentence, for the purpose of conveying a message to the Cambodian community.
In my opinion the Judge was reacting to the material in the reports before him which indicated that the appellant himself had referred to “Cambodian culture” in an attempt to explain his conduct and also to some of the material in those reports concerning Cambodian cultural attitudes to the marital relationship. I think that the Judge was also reacting to what counsel for the appellant said on the plea about the appellant’s conduct being “interwoven with cultural misgivings” and counsel’s reliance in his plea, for the purposes of mitigation, upon the references to Cambodian cultural attitudes in Mr Crewdson’s report.
As I see it, his Honour’s comment was simply a remark, in reaction, as to the effect of general deterrence if there were likeminded people within the Cambodian community. His Honour did not say that he was using general deterrence for the purpose of conveying a message to the Cambodian community nor did he say that he was using the sentence on the appellant as a vehicle for conveying that message. Nor, having regard to the sentences imposed, can it be inferred that this is what his Honour did or intended to do. Importantly, when the impugned passage is read in context, it is clear enough that his Honour did not consider general deterrence to be of added significance because of any likelihood that there were “likeminded people within the Cambodian community”. Thus, in my opinion his Honour did not fall into error and ground 2 fails.
Turning to ground 3, counsel for the appellant pointed to the lesser criminality of the appellant’s conduct the subject of the first presentment having regard to the injuries sustained by the appellant’s wife on that occasion being “at the lower end of the scale on a count of intentionally causing serious injury”. Counsel submitted that the Judge had allowed the circumstances of the offending in the second incident to influence the exercise of his discretion on fixing sentence in relation to the first incident. In that regard, counsel sought to rely upon a comment by the Judge during the plea that “if the first one was by itself I’d probably suspend it … but I can’t do that now because of what he then did a month and a half later”. Counsel for the appellant submitted that a wholly suspended sentence in relation to the first presentment, running concurrently with the sentence imposed on the second presentment, would have been appropriate.
It is clear that, during the plea, the Judge was frequently voicing his thoughts in the course of discussion and seeking the reaction of counsel. It would be dangerous to treat remarks made by the Judge, or any judge, during the course of a plea as if they were part of the reasons for sentence or as material to be used in the interpretation of the judge’s sentencing remarks or as throwing light upon the basis of the sentences imposed. Apart from anything else, such an approach would undesirably inhibit the free flow of discussion between counsel and the sentencing judge.
Counsel for the appellant accepted that the sentence on the first presentment was within range and further accepted that the Judge was entitled, in relation to any possible suspension of the sentence and in relation to cumulation, to take into account the appellant’s prospects of rehabilitation as disclosed by the whole of the evidence including the evidence concerning his conduct the subject of the second presentment. In my opinion, although not stated in so many words, it is obvious that the sentencing Judge in cumulating six months of the sentence on the first presentment was taking into account the appellant’s prospects of rehabilitation and the seriousness of the conduct the subject of the first presentment both as a separate and discrete incident and also as relevant to the total effective sentence. Indeed, the Judge expressly referred to the seriousness of the conduct, the subject of the first presentment, and the significance of the injuries sustained by the appellant’s wife[3] and to my mind it would have been wrong not to cumulate some part of the sentence on the first presentment upon the sentences for the counts contained in the second presentment. In my view for the foregoing reasons the Judge did not fall into error and ground 3 fails.
[3]See para [31] above.
As to ground 1, in contending that the total effective sentence and the non-parole period were manifestly excessive, counsel for the appellant emphasised in particular the likely effect of the appellant’s medication (efavirenz), being in the toxic range, at the time of the offending incidents. In that regard, however, it is to be noted that the material before the sentencing Judge showed that the appellant’s medication was more relevant to his psychological reserves than the actual offending conduct and that after his medication was changed he continued to exhibit hostility towards his wife.
In the end, as counsel for the appellant acknowledged, the question of manifest excess does not admit of much elaboration. In my opinion, far from being excessive, having regard to the seriousness of the conduct of the appellant (both the violence towards his wife and the danger in which he placed the passers-by), the total effective sentence was in all the circumstances well within the range open to the Judge – even after taking into account the plea of guilty, the absence of prior convictions, the appellant’s medical condition and the other matters relied upon by the appellant in mitigation. I would add that in my view the Judge showed considerable leniency when fixing the non-parole period.
For the foregoing reasons, I would dismiss the appeal.
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