R v Muto

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 73 of 1998

THE QUEEN

MILVAN FRANK MUTO

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JUDGES:	PHILLIPS, C.J., BATT and KENNY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 1998
DATE OF JUDGMENT:	16 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 67

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Criminal law - Sentence - Causing serious injury recklessly - Prior convictions for assault - Delay between commission of offence in 1993 to sentencing in 1998 - History of three trials and evidence of rehabilitation - Appeal allowed - Sentence of four years and non-parole period of one year and nine months’ imprisonment manifestly excessive - Reduced to three years’ imprisonment of which 18 months to be suspended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	In person

PHILLIPS, C.J. (delivering the judgment of the Court):

Milvan Frank Muto, you are appealing against a sentence given you in April last at the Melbourne County Court. You then received a sentence of four years' imprisonment with a non-parole period of one year and nine months on your conviction for an offence of causing serious injury recklessly, which offence carried a maximum penalty of ten years' imprisonment. You admitted two prior convictions for assault and, indeed, you were imprisoned on one of them, and those events occurred in 1981.
This offence was committed by you in November 1993 and you have been involved in a number of legal proceedings concerning it. I will not go into the facts of your offence; they must be very familiar to you.
You have lodged a notice of appeal in which you say that the sentence was manifestly excessive, and you give particulars - that the judge did not give sufficient weight to the time that had elapsed since November 1993, the fact that you have been involved in three trials over three years and to the fact that you had spent a period of 224 days in custody before your sentence.
Today you addressed the Court on your own behalf, having previously filed a statement which you asked the Court to take into account. You said today, firstly, that you queried whether the evidence at your trial showed that you had got out of your motor car holding the iron bar which was concerned in the attack. Counsel for the Crown, I note, conceded that there was no direct evidence that this had occurred but she submitted it was a matter of inference from the evidence adduced.
Continuing your address to the Court, you said that one of the major points you would like to make was that the sentencing judge placed too much weight on one of your prior convictions, that of 23 November 1981. You produced a newspaper article concerning your appeal from that conviction which had not been given to the sentencing judge. That appeal resulted in your sentence being reduced from three months' imprisonment to one month.
You pointed out that the sentencing judge had said that he accepted that your part in what he called the sordid events was less serious than that of a co- offender, and that you were not involved in what he called the initial attack.
Your next point related to the delay from 19 November 1993 until your sentencing on 1 April last. You submitted that was an unusual circumstance. You referred to your service of seven-and-a-half months' imprisonment at Beechworth and at Pentridge after your first trial and you said that thereafter there had been a delay of 28 months until your final trial took place, and you submitted, and it was not disputed, that you were not responsible for that delay. You argued that the judge sentencing you did not take this delay sufficiently into account. You said that during the delay you had gone, as you put it, a long way down the track towards re-organising your life. You said you had got your restaurant, as you put it, "up and going again", and you said your third trial had been destructive of that. You said that you had got a lot of adverse media coverage, the nature of which you illustrated by handing a sheaf of newspaper clippings to the Court. This publicity had had catastrophic effects, you stated, on your business and on your family.
You further suggested that the judge seemed to think that there was no provocation involved in your offence, and you referred to the transcript at p.1114. You also raised what you called a question of parity. You said that the Crown at your trial put to the jury a case of persons acting in concert. You pointed out that the judge found that it was you alone who actually inflicted the very serious injuries and you challenged that finding.
You concluded by asking the Court for some mercy and you asked for a reduced or possibly suspended sentence. You said that you had, as a result of your experiences over the last several years, now renounced anger and aggression as appropriate responses to stressful situations.
Ms Sexton, for the Crown, made the concession that I have mentioned and then pointed out that the judge apparently noted the age of your prior convictions but, so she submitted, did not appear to make too much of them. She informed the Court that your re-trial was removed from Shepparton because of the adverse publicity you had received. She submitted that the sentencing judge acknowledged the aspect of delay and she referred to p.1156 of the transcript. She pointed out that there had been fixed a lower than usual non-parole period and she submitted that the head sentence was indeed a merciful one. Ms Sexton submitted that the judge took provocation into account as explaining the offence but not excusing it, and that it was open for him to take that approach. Finally, Ms Sexton submitted that there was no evidence that the bar was used by anyone other than you in the attack.
In reply, you submitted that the evidence in your trial did show that some injuries were described by medical evidence as being consistent with the use of the bar. Your point was that only some injuries were so described. You also added that the prosecutor, upon your final conviction, had not called for a sentence greater than that originally imposed on you in 1995.
I now turn to the Court's conclusions. We have come to conclude that, in all the circumstances, upon its face the sentence imposed on you is manifestly excessive, permitting the inference that in some way the judicial discretion has miscarried. In so concluding we have noted, among other things, the history of this matter, the associated delay, the imprisonment you had served before being sentenced and the circumstance that, although it is not disputed your rehabilitation was far advanced in April this year, you received almost the same sentence as that imposed on you in April 1995. Thus it falls to this Court to re-sentence you.
After consideration, we have concluded that your offence is of such seriousness that it can only be properly dealt with by a sentence of imprisonment, but that in the particular and unusual circumstances of this case it is proper to suspend part of that sentence.
The law requires that I now explain to you in simple language the purpose and effect of a suspended sentence of imprisonment. They are to give you, after a term in actual custody, conditional freedom during what is called the operational period of the sentence, in your case three years from today. If during that time you commit, either inside or outside Victoria, another offence punishable by imprisonment - and I now tell you that the relatively minor crime of common assault is so punishable - you will be liable to be brought back to court, under arrest if need be, and you may be required to serve the whole of a restored sentence of imprisonment. Do you understand that?

APPLICANT:

Yes, sir.

PHILLIPS, C.J.:

The orders of the Court are:
The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed. The sentence imposed on the applicant in the court below is set aside and in lieu thereof he is sentenced to be imprisoned for three years. The Court orders that 18 months of that sentence be suspended. The Court fixes the period of three years from today as the period during which the applicant must not commit another offence if he is to avoid being dealt with under s.31 of the Sentencing Act.
The Court declares that the period of 393 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.
Stand up, Muto, please. The Court has taken this step after careful consideration of your case. You understand the consequences, I hope, of you breaching the order that the Court has made?

APPLICANT:

Yes, sir.

PHILLIPS, C.J.:

Don't let yourself down; don't let your wife and children down; don't let the Court down. Understood?

APPLICANT:

Yes, sir, I am indebted to you.

[1998] VSCA 67

16 September 1998