R v Michael Pang
[2014] ACTSC 319
•26 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Michael Pang |
Citation: | [2014] ACTSC 319 |
Hearing Date(s): | 23 April 2014, 22 July 2014, 26 August 2014 |
DecisionDate: | 26 August 2014 |
Before: | Refshauge J |
Decision: | 1. Michael Pang be convicted of causing damage to the property known as 53 Wentworth Avenue, Kingston, on 31 August 2013. 2. Michael Pang be sentenced to twelve months’ imprisonment. 3. That sentence be suspended from 26 August 2014. 4. Michael Pang be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of five years, with the following conditions: a) that he be on probation subject to the supervision of the Director‑General, or her delegate, for five years, or such lesser period as the person delegated to supervise him considers necessary, and that he obey all reasonable directions of the person delegated to supervise him; b) that he perform one hundred hours of community service work within twelve months from 26 August 2014; c) that he comply with the treatment recommended by ACT Mental Health Services; d) that he consent to ACT Mental Health Services, providing the person delegated to supervise him with any information about his treatment and counselling and his compliance with that treatment and counseling; and e) that he pay the sum of $22,755.48 to Lockhead Martin Australia trading as Lockhead Martin Centennial House by paying to the Registrar of the Supreme Court for payment out to Lockhead Martin, 53 Wentworth Avenue, Kingston, ACT, not less than $5,000 per year. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing Damaging property – Mental illness involved in offender’s criminality – Mental illness reduced offender’s moral culpability as distinct from his legal culpability |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 89(5) Criminal Code 2002 (ACT), s 403 |
Cases Cited: | Director of Public Prosecutions of (Vic) v Derby (2007) 171 A Crim R 302 Halden v The Queen (1983) 9 A Crim R 30 |
Parties: | The Queen (Crown) MIchael Pang (Offender) |
Representation: | Counsel Ms A Begley (Crown) Mr M O’Brien (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid (ACT) (Offender) | |
File Number(s): | SCC 9 of 2014 |
Refshauge J:
When people face challenging situations, their response can be affected by their mental circumstances, so that while the human feeling involved is understandable, the action taken can be disproportionate and sometimes criminal.
While the courts must respond to protect society against crime, for it disrupts the community and undermines the safety and security we are entitled to expect, courts must also impose an individualised sentence that recognises and gives appropriate weight to the personal circumstances of the offender, especially when he or she faces mental challenges.
The facts
In June or July 2013, Michael Pang was dismissed from his employment at Lockhead Martin, where he had been working for about eighteen months. This led him to becoming homeless and, in an apparent fit of frustration, no doubt with some stress from the decision of his employer, he drove a motor vehicle through the glass doors of his former employer’s premises on 31 August 2013, smashing the front sliding glass doors and a glass wall inside. The damage done has been estimated at $22,755.48.
Mr Pang said to the author of a helpful Pre‑Sentence Report, prepared for his sentencing, that he thought he would be imprisoned as a result of committing the offence and that this would resolve his homelessness.
Consequent upon these actions, Mr Pang was charged with damaging property. He has pleaded guilty to the offence. This offence is prohibited by s 403 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 1,000 penalty units (that is, at the time, a fine of $150,000, or imprisonment for ten years, or both).
The High Court has pointed out in cases such as Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31] that the statutory maximum penalty is a yard stick that the legislature provides by which to measure the seriousness of an offence. By this measure, the offence must be seen as a very serious offence.
Subjective circumstances
Mr Pang is twenty-seven years old, born of Chinese-Malaysian and Greek parents. He has three siblings of the same parents and two half‑brothers. He and his siblings lived with their mother until she died unexpectedly when Mr Pang was about four years old, an event which is described as having had a “devastating effect” on him and his life.
It appears that he was the most seriously affected in his family and it is suggested that it contributed to his mental health difficulties.
Mr Pang’s father lives in Canberra and they have regular contact, as Mr Pang does with his siblings. Indeed, he has resided with one of them.
He completed Year 12 in Canberra and has obtained a Certificate II in Network Administration from the Canberra Institute of Technology.
Mr Pang has been employed. As I have noted above (at [3]), he spent eighteen months with Lockhead Martin until he was dismissed.
In March 2014, he secured a six month contract as a senior technical officer with Calvary Hospital and this has helped his mental wellbeing. That employment, however, has now ended and he is currently looking for further work.
He is presently unemployed, but believes that he will be able to obtain further employment if he relocates to Melbourne from where he had moved to Canberra. He has been doing some voluntary work at the St Vincent De Paul Society, and is a valued member of their volunteer team.
I was told that he had completed twenty-four hours of such voluntary work prior to the last appearance in Court on 22 July 2014 and, since then, I have a report from that Society that he had completed a further forty-five hours and forty minutes. In my view, I can take this into account in sentencing. He has significant debts and these can only be met if he obtains further employment and then remains employed.
Unfortunately, Mr Pang has a limited circle of friends, almost entirely family, which makes him rather isolated.
He does not use alcohol or illicit drugs, though he experimented with cannabis when he was younger. This led to an episode of psychosis and this resulted in him stopping all use.
Mr Pang was involved in a motorcycle accident about seven years ago and left him with permanent damage to the left side of his body.
He has, however, some significant mental challenges. He has been diagnosed with a schizo‑affective disorder. He was reported as having engaged in self harm. He spent time in the psychiatric unit of the Canberra Hospital. He is presently receiving monthly anti‑psychotic medication under a psychiatric treatment order which is to expire on 5 September 2014.
He is regarded currently as stable and compliant with medication and regular reviews. It is likely, therefore, that the psychiatric treatment order will not be reviewed. It is important, however, that he maintains his present medication regime and I shall take that into account in the sentence that I impose.
Mr Pang has one minor traffic offence on his criminal record. I do not regard it as relevant to the sentence I must impose.
The author of the Pre‑Sentence Report has expressed Mr Pang as at a moderate risk of re-offending, primarily due to his emotional and mental wellbeing, his financial difficulties and his isolated lifestyle.
At the moment, it appears to me that his mental wellbeing is under control, not only by the medication, but by the fact that he is engaging in volunteer work, although obviously that does not assist the financial difficulties nor his isolated lifestyle.
He has accepted responsibility for the offence he committed and pleaded guilty in the Magistrates Court on his third appearance in that Court. I consider that to be an early plea of guilty.
He has also been engaging satisfactorily with services supplying him with assistance for his mental health problems, but he is rather disheartened at his present circumstances. It is said that he would benefit from engaging in positive, social activities and it appears that his work with the St Vincent De Paul Society is providing some of that benefit.
The offence of damaging property is, as I have noted, to be considered a serious one from the maximum penalties provided by the legislature, although it is important to have regard to the particular circumstances of each case.
In a passage cited with approval by Kellam JA, with whom Vincent JA agreed, in Director of Public Prosecutions of (Vic) v Derby (2007) 171 A Crim R 302 at 308; [23], Murphy J said in Halden v The Queen (1983) 9 A Crim R 30 at 38-9 of the crime of damaging property that it
is a crime which may be committed in a very wide range of circumstances. The property damage may vary from a book to a mansion and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.
The penalty may also vary according to the circumstances in which the crime is committed.
Here, of course, a very substantial amount of damage was done, although Mr Pang appears to have accepted responsibility for the damage. It seems that he will have difficulty in making reparation for it, but a reparation order is appropriate.
Consideration
I take into account Mr Pang’s plea of guilty, which was made at an early stage; the prosecution case was strong, for CCTV showed clearly his car doing the damage, but it did not show him as the driver. Nevertheless, Mr Pang made full admissions when questioned by the police. He did not even remove the glass fragments that had been left on his vehicle from the commission of the offence.
I take into account the seriousness of the offence and the value of the damage done. It was a deliberate action of Mr Pang’s to cause damage, no doubt out of frustration and some sense of retaliation for his dismissal which had caused him to become homeless. I accept that he is remorseful and he has accepted responsibility for his actions. I also take into account his subjective circumstances, as I have outlined them above, especially his mental health circumstances, which I am satisfied has led him to make a poor judgment when committing the offence.
This, in the sense used in R v Verdins (2007) 16 VR 269 at 276; [32], reduces his moral culpability though not his legal responsibility for the offence. As Spigelman CJ pointed out in R v Israil [2002] NSWCCA 255 at [23], mental illness can explain an offence when it causes an offender to be unable to make unreasonable judgments. See also R v Hamid [2002] VSCA 9 at [11].
I note that Mr Pang has been assessed as unsuitable for a community service condition to a good behaviour order or to serve a period of imprisonment by a period of detention. The reason given is because of what is described as “major psychiatric or psychological disorder”.
Despite the assessment, I note that Mr Pang has successfully been undertaking volunteer work with the St Vincent De Paul Society, appears to be regarded well by that organisation and is able to provide valuable assistance to it. I also note that Mr Pang is now compliant with his treatment regime which appears to be successfully managing his mental health.
I consider under s 89(5) of the Crimes (Sentencing) Act 2005 (ACT) that, despite the assessment, it is for the above reasons appropriate to include a community service work condition in a good behaviour order. I note the period of time that he has already completed such voluntary work and I take that into account.
Having carefully considered all the above matters, however, it seems to me that the seriousness of the offence means that no other sentence than a sentence of imprisonment is appropriate for the offence.
Mr Pang, please stand:
1.I convict you of causing damage to the property known as 53 Wentworth Avenue, Kingston, on 31 August 2013.
2.I sentence you to twelve months’ imprisonment. Had you not pleaded guilty, I would have sentenced you to sixteen months’ imprisonment.
3.I suspend that sentence today.
4.I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of five years, with the following conditions:
a)that you be on probation subject to the supervision of the Director‑General, or her delegate, for five years, or such lesser period as the person delegated to supervise you considers necessary, and that you obey all reasonable directions of the person delegated to supervise you;
b)that you perform one hundred hours of community service work within twelve months from today;
c)that you comply with the treatment recommended by ACT Mental Health Services;
d)that you consent to ACT Mental Health Services, providing the person delegated to supervise you with any information about your treatment and counselling and your compliance with that treatment and counseling; and
e)that you pay the sum of $22,755.48 to Lockhead Martin Australia trading as Lockhead Martin Centennial House by paying to the Registrar of the Supreme Court for payment out to Lockhead Martin, 53 Wentworth Avenue, Kingston, ACT, not less than $5,000 per year.
[His Honour then spoke directly to Mr Pang]
That is the formal order, Mr Pang, that I have made, and what I need to explain to you is this was a really serious offence and I have assessed, notwithstanding your prior good record, that it is worth, in effect, twelve months’ imprisonment, but I am not requiring you to go to prison. I am releasing you today back into the community but I am making a good behaviour order which is an order that requires you not to commit any further offences that are punishable by imprisonment.
If you do commit such an offence, you can be brought back to me and I can re-sentence you, including sending you to gaol for part or all of that twelve months. I have made some other conditions. They are intended to protect the community, to make reparation to the community but also for your assistance to help you to become as pro‑social as you have been for the last twenty-six years or so.
The first is the performing of the community service work and that hopefully will help to maintain the stability of your mental health and give you some transition back into employment.
It is a bit, perhaps, odd that you are going to be moving to Melbourne for employment, but I do not think the community service work will interfere with that. Hopefully it will help to put you in a good space so far as your mental health is concerned. And it also pays back to the community for this offence that you have committed.
I have made it a condition also that you comply with the treatment recommended by Mental Health. You will not be subject to a psychiatric treatment order probably after September, but I just think it is better for everyone that, if things are starting to go wrong, you can be brought back to Court and we can see what we are going to do about that. In order that that can be managed, because Mental Health will not bring cases back to me, I have required you to consent to Mental Health letting the Correctives Services people know about how you are going, because without that consent, they would not be entitled, for privacy reasons, to do that. Then the people at Corrective Services, or, if it is transferred to Melbourne Probation and Parole in Melbourne can just monitor that and make sure that things are going okay.
And finally, to pay back the money over five years at $5,000 a year, which is a massive amount of money, I understand, but it should not be beyond your capability if you manage to get employment. Do not forget about it. I have made it a yearly installment, which means you only have to pay it once a year. But you can make payments, you know, every week if you want to, whatever you need to as long as it is a total of at least $5,000 each year. If I were to make the installments more frequent, then there is a real risk that until you get some employment, you will be in default and then, you know, it will all fall apart.
Those conditions are conditions of the order and, if you breach those conditions, you can be brought back also before me and I can deal with you for the breach. If any of those orders become difficult for you, if they become problematic, then I have the power at your request, or the request of the prosecution, to vary those orders, and I am prepared to look at that if it is appropriate so that if, you know, you are still unemployed by this time next year, then the $5,000 becomes really problematic. I realise it is difficult to come back to Canberra but you need to do that to come back before me and we will see what we can do about moderating that if we need to do so.
Those are the obligations I think you should undertake. Hopefully, those will help you to reintegrate back into the community. I think the chances of you committing any further offences as long as you keep up your mental health treatment and counselling and as long as you get a job are remote, and I hope that that’s the position. I wish you well.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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