R v Taing
[2009] VSCA 8
•3 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 949 of 2007
| THE QUEEN |
| v |
| MENG EAM TAING |
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JUDGES: | KELLAM and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 February 2009 | |
DATE OF JUDGMENT: | 3 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 8 | |
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Criminal Law – Sentencing – Robbery – Two victims - Trafficking in a drug of dependence – Substantial criminal history – Sentence of 18 months’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr GJC Silbert SC with Mr BL Sonnet | Mr S Ward, Acting Solicitor for public Prosecutions |
| For the Appellant | Mr CG Mandy | Slades and Parsons |
KELLAM JA:
On 13 November 2007 and after the commencement of his trial in the County Court the appellant pleaded guilty to one count of robbery. The circumstances relating to this count are that on 11 November 2005 the appellant approached Ali Houssein who was known to the appellant at the time. The appellant grabbed Mr Houssein around the neck and removed a gold chain from him.
On 21 November 2007 and after a trial, the appellant was found guilty of one count of trafficking in a drug of dependence and one count of theft. The circumstances relating to these convictions are that on 18 November 2005 the appellant encountered one Stuart Morrison in Springvale. The two parties did not know each other but Mr Morrison made eye contact with the appellant and by reason of some gestures made between the parties it was understood that the appellant had heroin which Mr Morrison wished to purchase. Mr Morrison and the appellant walked together to an arcade area. Mr Morrison took out two $50 notes which the appellant snatched from him and then ran away. Although in fact the appellant had no heroin for sale, he was found guilty of trafficking as the statutory definition of trafficking includes ‘agree to sell, offer for sale’.[1]
[1]Section 70 Drugs Poisons and Controlled Substances Act 1981.
The sentencing judge imposed a sentence of nine months’ imprisonment on the count of robbery of Ali Houssein to which the appellant pleaded guilty on 19 November 2007. He imposed a sentence of nine months’ imprisonment on the count of trafficking in a drug of dependence and a sentence of six months’ imprisonment on the count of theft of which the appellant was convicted on 21 November 2007.
His Honour directed that three months of the sentence imposed on the count of theft, and six months of the sentence imposed on the count of robbery should be cumulative, resulting in a total effective sentence of 18 months’ imprisonment. No non-parole period was fixed, counsel for the appellant submitting specifically that the appellant did not seek to be eligible for parole.
The appellant now appeals that sentence.
It is relevant to note that subsequently and on 24 June 2008, the appellant pleaded guilty to one count of robbery in the County Court in relation to a robbery committed by him on 11 February 2007. The circumstances of that offence were not dissimilar to the circumstances of the offence committed by the appellant upon Mr Morrison in November 2005. The appellant was sentenced to 12 months’ imprisonment on that matter.
The grounds of appeal are:
1.That the sentence imposed on the count of trafficking heroin was manifestly excessive.
2.That the sentencing judge was in error in accumulating three months of the sentence imposed on the count of theft upon the count of trafficking.
3.That the sentencing judge erred in giving undue weight to the criminal history of the appellant.
4. That the total effective sentence was manifestly excessive.
Before turning to these grounds it is appropriate to say something briefly about the background and antecedents of the appellant.
The appellant was born in Cambodia in December 1969 and accordingly was aged 35 years at the time of the commission of the offences. He migrated to Australia, via a refugee camp in Thailand, in his early teenage years. His adult life has been characterised by drug use, offending and incarceration. He has not had any long-term relationships nor any long-term employment.
He has an extensive and relevant history of offending, commencing in 1990. The further presentment reveals that the appellant had 19 appearances before Victorian courts between June 1990 and August 2005. Those appearances include numerous offences for possession and use of and trafficking in a drug of dependence. Of particular relevance is the fact that the appellant has had two convictions for armed robbery as well as numerous convictions for dishonesty offences.
I return to the grounds of appeal. The contention of the appellant is that the sentence imposed on the count of trafficking heroin was manifestly excessive. It is submitted by counsel for the appellant that the offence of trafficking was committed in ‘a very technical and unreal sense’ although, in the course of oral argument counsel said that his real submission is that the offending was at the bottom end of the range of culpability. In particular it is contended by ground 2 that the cumulation of three months’ imprisonment of the sentence imposed for theft upon the sentence of nine months’ imprisonment imposed for trafficking has resulted in a total effective sentence of 12 months’ imprisonment which, it is submitted, is disproportionate to the gravity of the offence.
In my view grounds 1 and 2 have no substance. The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment. In the circumstances before him the sentencing judge was entitled to regard the sentencing principles of general deterrence, specific deterrence and protection of the public as being important and relevant to the sentencing task to be undertaken by him. When those factors are given appropriate consideration the totality of the sentence imposed in respect of the offences of trafficking and theft cannot be regarded as being manifestly excessive. Whilst it might be the case that the trafficking and the theft offences formed part of a single criminal episode, the offences were nevertheless discrete offences and it was open to his Honour to make the order for partial cumulation that he did.
In the course of his sentencing remarks his Honour stated that there was no option but to impose a sentence of imprisonment. He then went on to say that by reason of the ‘background and the seriousness of offending’ the sentence of imprisonment needed to be ‘a greater term of imprisonment’ than the appellant had received in the past. It is submitted on behalf of the appellant that this comment revealed error in his Honour’s approach to the prior history of the appellant. It is submitted that the antecedent criminal history of the appellant led his Honour to impose a penalty which was disproportionate to the gravity of the offence.
Quite clearly his Honour was not entitled to punish the appellant more severely simply as a consequence of the commission of earlier offences.[2] However, in my view, it is clear that his Honour, who is a most experienced judge, was not taking such a course. Clearly he was referring to the fact that the antecedent history of the appellant included sentences of considerable leniency indeed and on many occasions. The appellant had received good behaviour bonds, fines and community-based orders. He had also received the benefit of orders for concurrency and/or suspension of many of the sentences of imprisonment he had received. On a number of occasions , as was pointed out by counsel for the respondent, the appellant’s response to that leniency was to breach the terms of the court order. It is apparent that such sentences had done nothing to deter the appellant from his criminal conduct. Whilst the appellant could not be punished additionally for such convictions, they were nonetheless relevant to an assessment of such matters as his moral culpability and, in particular, his prospects for rehabilitation. There was little, if any, evidence of remorse before his Honour. His Honour was entitled to conclude that the prospects of rehabilitation, taking into account past dispositions, were remote. As Vincent JA stated in R v El-Hag[3]:
It is trite to point out that the criminal history of an individual can assume significance in a number of different ways, bearing upon such matters as the level of the offender's personal culpability for his or her conduct, the presence of remorse, the relevance of specific or general deterrence, the offender's prospects of successful rehabilitation, and the need to protect the public.
In my view, taking into account the antecedent history of the appellant and the numerous lenient sentencing dispositions in the past, there is no reason to suspect that the sentencing judge was in any way relying upon such antecedents in an inappropriate or improper manner.
[2]See Veen v R (No 2) (1988) 164 CLR 465.
[3][2007] VSCA 179, [24].
I turn to ground 4 which contends that the total effective sentence was manifestly excessive. Counsel for the appellant concedes that no complaint may be made about a nine month sentence for the offence of robbery nor any complaint about the cumulation of six months of that sentence upon the sentences imposed for trafficking and for theft. However it is contended that taking into account the fact that the appellant had offered to plead guilty to theft at an early stage in the proceedings, and that there was some delay, and that there was a Renzella[4] argument in relation to time spent in custody between the commission of the offence and the date of sentence, that the total effective sentence of 18 months imprisonment was manifestly excessive.
[4][1997] 2 VR 88.
In my view this argument cannot be sustained. The appellant is a mature person who has been engaged in criminal conduct involving drugs, violence and dishonesty for most of his adult life. The offences concerned involved two separate victims. Indeed it might be said that the sentence of nine months’ imprisonment imposed for the offence of robbery was merciful in the light of the applicable maximum penalty of 15 years’ imprisonment, the appellant’s record of violence and the lack of any evidence of remorse. It is clear from a reading of the transcript of the plea that his Honour was well aware of the fact that the appellant had spent time in custody for other matters whilst awaiting his trial, and there is no reason to believe that his Honour failed to take that matter into account to the extent that the law permitted. In my view any delay in the matter coming on for trial was not of significance. As is submitted by the respondent, the total effective sentence of 18 months’ imprisonment was well within the range for what amounted to two episodes of serious criminality committed by an offender with a significant criminal history extending over many years. The appeal should be dismissed.
WEINBERG JA:
I agree with the observations of Kellam JA and with the order proposed.
KELLAM JA:
The appeal is dismissed.
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