Vu v The Queen
[2020] VSCA 59
•23 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0287
| HUNG ANH VU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE, T FORREST and OSBORN JJA |
| WHERE HELD: | MORWELL |
| DATE OF HEARING: | 12 March 2020 |
| DATE OF JUDGMENT: | 23 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 59 |
| JUDGMENT APPEALED FROM: | [2018] VSC 732 (Tinney J) |
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CRIMINAL LAW – Appeal – Sentence – Murder – Recklessly causing serious injury – Found not guilty of murder but guilty of manslaughter – Total effective sentence of 15 years’ imprisonment with non-parole period of 11 years – Pre-trial offer to plead guilty to manslaughter – Utilitarian value and sentencing benefits of plea offer – Whether post-offence conduct mitigatory – Whether individual sentences, total effective sentence and order for cumulation manifestly excessive – Whether principle of totality infringed – Serious examples of manslaughter and recklessly causing serious injury – Individual sentences within range – Order for cumulation manifestly excessive – Leave to appeal granted – Appeal allowed – Resentenced to 13 years and six months’ imprisonment with non-parole period of 10 years – DPP v Grabovac [1998] 1 VR 664 considered.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr S Bayles with Mr J Connolly | Stary Norton Halphen |
| For the Respondent | Ms M A Mahady with Mr P J Smallwood | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA
OSBORN JA:
Summary
The applicant was indicted to stand trial in the Supreme Court. He pleaded not guilty to one charge of murder (charge 1), one charge of attempted murder (charge 2), one charge of intentionally causing serious injury (charge 3) and one charge of recklessly causing serious injury (charge 4). Charges 3 and 4 were put as alternatives to charge 2.
On 18 October 2018, the jury returned a verdict of not guilty to charge 1, but guilty to manslaughter, not guilty to charges 2 and 3, but guilty to charge 4.
On 26 November 2018, the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation Alternative to charge 1 Manslaughter 20 years’ imprisonment 12 years’ imprisonment Base 4 Causing serious injury recklessly
(Crimes Act 1958 s 17)15 years’ imprisonment 6 years’ imprisonment 3 years Total effective sentence: 15 years’ imprisonment Non-parole period: 11 years Pre-sentence detention: 478 days Other relevant orders: Forfeiture and disposal orders
The applicant applied for leave to appeal against his sentence on the following grounds:
1. The order for cumulation was excessive and thereby infringed the totality principle.
2. The learned sentencing judge erred by granting the applicant only a modest benefit for the utilitarian value of his plea offer.
3. The learned sentencing judge erred by granting the applicant no benefit for his plea offer other than for its utilitarian value.
4. The learned sentencing judge erred by not treating as mitigating the conduct of the applicant immediately after the offending.
5. The individual sentences imposed for both offences, the order for cumulation and the total effective sentence were manifestly excessive, particularly in light of:
a. The totality principle (see ground 1 above);
b. The finding that the recklessly causing serious injury was a mid-range example of the offence;
c. The applicant’s offer to plead guilty (see grounds 2 and 3 above);
d. The mitigatory effect of the applicant’s conduct immediately after the offending (see ground 4 above);
e. There being, it is argued, some evidence of remorse, acceptance of responsibility and a willingness to facilitate the course of justice;
f. The finding that the applicant’s prospects of rehabilitation are ‘quite good’;
g. The finding that specific deterrence ‘does not loom large’ in this case.
We have concluded that leave to appeal against the sentence should be refused on grounds 2, 3, 4 and 5 (in part). We shall grant leave to appeal and allow the appeal on grounds 1 and 5 (in part).
Background to the offending
The applicant lived in Sunshine West with Laura Chan for many years. They had two children together. In 2013, the applicant was imprisoned in New South Wales for drug offences. He was absent from the family home until 2016. The children were pre-teenagers when he was imprisoned.[1]
[1]His children were aged 14 and 16 at the time of sentencing.
During his incarceration, Ms Chan commenced and maintained an intimate relationship with Viet Nguyen. Mr Nguyen moved into the Sunshine West property and the couple were married in September 2015. This was kept secret from the applicant.
In August 2016, the applicant was released from prison. Shortly prior to this, Mr Nguyen had moved out of the Sunshine West house. The applicant resumed living there with Ms Chan and their children. Mr Nguyen moved to a nearby property and secretly continued his relationship with Ms Chan. Mr Nguyen was introduced to the applicant as a friend.
Over the next 12 months, the applicant heard rumours about Ms Chan’s relationship with Mr Nguyen. He confronted Ms Chan about the rumour but she denied it. The applicant’s relationship with Ms Chan deteriorated; they slept in separate bedrooms and in the weeks leading up to the offending on 5 August 2017, they did not speak to each other.
The offending
On 5 August 2017, the applicant’s mother and two sons confirmed to him the fact and extent of the relationship between Ms Chan and Mr Nguyen. The applicant telephoned Mr Nguyen and invited him to the Sunshine West property. He then removed a large hunting knife from a drawer in the kitchen and concealed it beneath a cushion in the living/dining area of the house.
The applicant also telephoned his friend, Minh Nguyen, and told Minh of his concerns about Ms Chan’s relationship with Mr Nguyen, and of his plans to confront both of them at the Sunshine West property. Minh was sufficiently concerned after this conversation to cause him to drive to the Sunshine West property where a group of the applicant’s friends had gathered.
The applicant consumed several glasses of cognac in the company of his friends. He appeared depressed. His children were in their bedrooms. Mr Nguyen arrived and after some time, Ms Chan also arrived. She greeted the visitors and went to her bedroom.
The applicant went to Ms Chan’s bedroom, and asked her to come out and talk to him. She refused and the applicant began to drag her out of the bedroom. Ms Chan asked for time to get dressed. The applicant left the bedroom and Ms Chan locked the door.
The applicant returned to the living room and asked the visitors to leave the room so that he could speak to Mr Nguyen and Ms Chan in private. The visitors waited outside, near the front door of the property. The applicant then went to Ms Chan’s bedroom, kicked the locked door open, took Ms Chan by the arm, and led her out into the living/dining area. Mr Nguyen and Ms Chan were seated in the living/dining area. Minh, upon hearing the sound of the door being kicked, came back into the house through a bedroom window and took up a seat next to the applicant.
The applicant questioned Ms Chan and Mr Nguyen about their relationship. They stated they were just friends. The applicant refused to accept their denials and became irate. Minh tried to calm the applicant. The applicant retrieved the hidden hunting knife while Minh tried to restrain him physically. He told Minh to ‘fuck off’ and broke free. The applicant stabbed both Mr Nguyen and Ms Chan to the chest.
By the time this occurred, there were five eyewitnesses to the events: Ms Chan, Mr Nguyen, Minh, Kim Nguyen (the applicant’s daughter) and Nam Nguyen (Minh’s brother). Four of these eyewitnesses survived and all claimed not to have seen the stabbings themselves. In sentencing, his Honour viewed their evidence with considerable scepticism:
The evidence was very unsatisfactory. I make it clear I do not hold that fact against [the applicant], but it does limit my ability to make specific findings of fact about the precise mechanics of the stabbings.[2]
It is likely that the victims were seated at the dining table when they were stabbed.
[2]R v Vu [2018] VSC 732, [24] (‘Reasons’).
Aftermath
The applicant immediately attended to Mr Nguyen and told his daughter to call 000. He applied pressure to the wound and provided CPR. At some point, he took another knife and held it to his chest, but was dissuaded from stabbing himself. When police spoke to the applicant at the crime scene, he stated that ‘[Mr Nguyen] did suicide’. Shortly thereafter, he stated to another police officer that both victims were having an affair and had stabbed themselves out of shame.
Mr Nguyen died at the scene. He sustained a single, very deep wound to the chest, coursing through subcutaneous tissue, the right pectoralis muscle, the second intercostal space, into the pericardial sac, and then into the aorta, also penetrating the right lobe of the lung. Death occurred very quickly.
Ms Chan sustained a wound to the same part of the chest as Mr Nguyen. She bled from the right internal thoracic artery, although ultimately, surgical intervention was not required and the damage repaired itself. She also suffered damage to a smaller artery, just below the skin, and a pneumothorax to the right lung which partially collapsed. A small right haemothorax in the extra-pleural space of the right lung was also observed and treated.
The plea
The applicant admitted to an old prior conviction for illegal use of a motor vehicle resulting in a fine, and a more recent conviction for supplying a commercial quantity of a prohibited drug. On appeal, this conviction was substituted with a conviction for supplying an indictable quantity of a prohibited drug. The applicant was sentenced to four years and six months’ imprisonment with a non-parole period of three years and five months. It was while he was serving this sentence that the relationship between the deceased and Ms Chan developed.
On the plea, counsel for the applicant prepared and tendered written submissions, and supplemented them with extensive oral submissions. In summary, counsel set out the following:
Applicant’s background
·The applicant was born in Vietnam in 1971 and was, at the time of the plea, aged 47 years.
·He is the youngest of three children, who were all born during the Vietnam War. His 84 year old father and 74 year old mother were present throughout the trial.
·The applicant’s first 10 years in Vietnam were characterised by hardship and deprivation. His family was separated, his father was imprisoned for a time for trying to leave the country and the children were withdrawn from school.
·His family eventually fled Vietnam in 1981 by boat to Hong Kong. He then lived in an overcrowded refugee camp for approximately four or five years.
·The family came to Australia in approximately 1986. After initially settling in Adelaide, the family came to live in Melbourne. The applicant completed schooling to Year 11 at Maribyrnong High School.
·He became employed in the textile industry and married when he was around 19 years old. He and his then wife had three children together.
·After working as a mechanic, the applicant worked at Melbourne City Toyota as an air-conditioning fitter. He was promoted to the sales department and continued at this workplace for 20 years. He worked long hours, six days a week and his marriage broke down.
·He purchased the Sunshine West property in around 2000, initially with a mortgage of about $200,000. When he was imprisoned, his partner, Ms Chan, took over the mortgage and re-borrowed against the house.
Offer to plead guilty
·The applicant offered to plead guilty to the offence of manslaughter. This offer was made in writing both before and shortly after the committal hearing, and again in verbal discussions before the trial. The prosecution rejected the offer.
·No formal offer was put with respect to the injury to Ms Chan.
·Counsel for the applicant submitted that the applicant was entitled to a significant discount for his offer to plead guilty. Counsel submitted that the applicant should receive a maximum utilitarian benefit and that the offer also evidenced genuine remorse.
Circumstances of the offending
·While Ms Chan’s affair with Mr Nguyen did not mitigate the offending, counsel for the applicant submitted that it provided important context to the crimes.
·The applicant had spent three years in prison, away from his family and community. Upon release, he was introduced to Mr Nguyen. The two men became friends, and worked and socialised together.
·The applicant worked hard to re-establish himself in the community and worked as a handyman, using the skills he had gained in prison.
·When the applicant first heard the rumours of Ms Chan and Mr Nguyen’s affair, he did not act upon them straightaway. He said to his daughter that he was going to give Ms Chan the benefit of the doubt.
Events following the offending
·Counsel for the applicant submitted that the applicant’s conduct immediately after the stabbings should be viewed as mitigatory, as it demonstrated remorse.
Recklessly causing serious injury
·While the injury to Ms Chan was serious, there was no evidence of any permanent or ongoing impairment as a result of the injury.
Counsel for the applicant also drew the court’s attention to the onerous nature of imprisonment, and submitted that there should be a substantial measure of concurrency between the sentences because the offences were committed in the same incident in short succession.
The prosecutor accepted that some discount should be allowed for the applicant’s plea offer, however, contended that the judge should not conclude that the offer bespoke remorse, contrition, acceptance of responsibility or a willingness to facilitate the course of justice. The prosecutor contended that these were serious examples of these particular offences. Totality had work to do and some concurrency was appropriate, but sufficient cumulation was required to reflect that these were two separate criminal acts. The main sentencing purposes, so the prosecutor submitted, were general deterrence, just punishment and denunciation.
Trial judge’s sentencing reasons
In his sentencing reasons, the judge summarised the facts of the case in similar terms to paragraphs 6 to 19 above. In sentencing the applicant, his Honour said that he was satisfied beyond reasonable doubt of the following facts:[3]
[3]Ibid [40].
·The applicant’s stabbing of both victims occurred in the context of his anger and resentment towards them as a result of their affair, which was confirmed to the applicant on the day of the events.
·The applicant decided that he would confront both Mr Nguyen and Ms Chan, and lured the deceased to his home for that purpose.
·The applicant hid the hunting knife in a location where he would be able to easily access it during the course of the intended confrontation. By his own admission, the reason for secreting the knife was to use it for an illegal purpose in the course of the proposed confrontation.
·He physically forced Ms Chan to come out from her bedroom to the dining table, intent on confronting her.
·The applicant’s stabbing of both victims occurred in circumstances where Minh was using all available means, including physical force, in order to try to prevent him from carrying out these attacks. Neither of the victims presented any sort of physical threat to the applicant.
·Each stabbing was inflicted by the applicant’s action of deliberately thrusting the knife into the chest of the victims.
·The two stabbings followed very closely upon each other. The applicant stabbed Mr Nguyen first, and then Ms Chan.
·The stab wound to the deceased’s chest was a very deep one.
·The stab wound to Ms Chan’s chest, while not as deep, was still sufficient to penetrate her chest and damage an important artery. As a result, she suffered serious injury as defined in s 15 of the Crimes Act 1958.
The sentencing judge considered the applicant’s personal history as set out by counsel for the applicant on the plea.[4]
[4]Ibid [41]–[59].
In sentencing the applicant for manslaughter, the judge took into account the applicant’s offer to plead guilty to the crime of manslaughter of Mr Nguyen:
There is no question that that [the applicant is] entitled to a reduction in sentence on account of the utilitarian benefits attaching to the plea offer [he] made. Had [his] offer been accepted, no trial would have been necessary, and there would have been the corresponding saving of time, resources and emotional energy expended in the trial.[5]
The judge considered, however, the reduction in the applicant’s sentence to which he is entitled to be ‘quite modest’.[6] In all the circumstances, the judge was not satisfied that the applicant showed remorse for his actions.[7] The only discount to which the applicant was entitled was that flowing from the utilitarian value of his plea offer.[8]
[5]Ibid [58]–[59].
[6]Ibid [60].
[7]Ibid [72].
[8]Ibid [73].
The judge also took into consideration the background to the applicant’s offences,[9] the seriousness of the crimes of manslaughter and recklessly causing serious injury,[10] the applicant’s prior criminal history and the fact that the applicant was on parole at the time of this offending,[11] and the impact of the offending on his victims.[12] The judge assessed the applicant’s prospects of rehabilitation to be reasonably good, taking into account the lack of any prior convictions for crimes of violence, the fact that Ms Chan said he had never been violent towards her previously in their relationship, his age and his good work history.[13]
[9]Ibid [75]–[79].
[10]Ibid [80]–[88].
[11]Ibid [89]–[92].
[12]Ibid [107]–[111].
[13]Ibid [93].
The judge concluded that a ‘significant degree of cumulation is required’:
Whilst it is true that [his] stabbings of the two victims occurred as part of the one course of conduct, were very close in time, and were seemingly carried out for much the same motive, it cannot be forgotten that [he] carried out attacks upon not one but two distinct victims, each attack necessitating a decision by [him] to deliberately stab the particular individual, and then [his] action in pursuit of each decision. Furthermore, each act was, in its own right, a serious criminal offence.[14]
[14]Ibid [100].
The sentencing principles of punishment, denunciation and general deterrence were said to be reflected in the sentence.[15] The sentence
also manifest[s] the denunciation by the Court of the shockingly violent conduct which [the applicant] carried out. Furthermore, the sentence … must be such as to bring it home clearly to others in the community who may be minded to act with extreme violence in carrying out attacks upon partners and others, for reasons of anger, resentment and jealousy, that such behaviour will be met with strong punishment.[16]
[15]Ibid [112].
[16]Ibid.
This appeal
In his written case, the applicant contended:
(a) Ground 1: The order for cumulation of three years is manifestly excessive and infringes the totality principle. The overlay in time, conduct and context requires substantially less cumulation than ordered. The aggregation of the sentences is not a ‘just and appropriate measure of the total criminality involved’.
(b) Ground 2: The modest benefit allowed for the utilitarian value is insufficient. His Honour erred in concluding that a ‘quite modest’ discount was appropriate and that when his Honour referred to ‘the overall circumstances of the case’, he should have identified what those overall circumstances were.
(c) Ground 3: The judge erred by declining to allow any sentencing benefit from the subjective aspects of the applicant’s plea offer. Specifically, his Honour failed to infer remorse from the offer and erroneously characterised the offer as ‘pragmatic’ in the face of a strong Crown case on the charge of murder. The judge, it was contended, erred in using the applicant’s forensic trial decisions against him when determining whether there was remorse or contrition.
(d) Ground 4: The judge erred in declining to treat the immediate post-offence conduct as a mitigating feature. He should have accorded some benefit for the 000 call, the application of pressure to the wound and the attempts to resuscitate Mr Nguyen. It can be contrasted to aggravating post-offence conduct.
(e) Ground 5: The individual sentences imposed for both offences, the order for cumulation and the total effective sentence are manifestly excessive.
It its response, the respondent contended:
(f) Ground 1: The order for cumulation is appropriate and the product of a correct application of the totality principle. Separate harm was caused to separate victims in separate acts.
(g) Ground 2: The judge was entitled to conclude that the utilitarian discount for the manslaughter plea offer be ‘quite modest’. Alternatively, if his Honour erred in this assessment, no different sentence should be imposed.
(h) Ground 3: The judge was correct in concluding there was no remorse. He was entitled to conclude that the plea offer was made for a pragmatic purpose which did not involve remorse, and he was also entitled to conclude that there was no evidence of genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice.
(i) Ground 4: The post-offence mitigatory conduct was only one factor in the overall factual matrix and it was counterbalanced by other aspects of the applicant’s immediate post-offence conduct. In any event, his Honour took into account the post-offence mitigatory conduct in the overall construction of an appropriate sentence for the manslaughter charge.
(j) Ground 5: The complaint of manifest excess cannot be sustained. The individual sentences are stern but within the permissible range, as is the total effective sentence. The judge categorised the manslaughter as a ‘very serious example of the crime of manslaughter’, in ‘the upper range of seriousness’. His Honour was also entitled to find charge 2 as a serious example of the offence of recklessly causing serious injury. The sentence of six years is within the permissible range.
Analysis
There is considerable overlap between the grounds. We shall make some general observations before individual consideration of those grounds. There can be no doubt that the individual sentences are stern, the order for cumulation is stern and thus the total effective sentence is also stern, as is the minimum term before parole eligibility. A stern sentence, however, does not necessarily bespeak manifest excess. As this Court has repeatedly stated, a complaint of manifest excess is difficult to establish.[17] An applicant must show that the sentence was wholly outside the range of sentences available to the judge.[18] Sentencing is a discretionary exercise and, in the absence of identifiable error, an applicant must demonstrate that the sentence imposed was not reasonably open.
[17]See, eg, DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (‘Karazisis’); DPP v Zhuang (2015) 250 A Crim R 282, 295 [40]; DPP (Cth) v Ramos [2018] VSCA 290, [39]; DPP v Macarthur [2019] VSCA 71, [59]–[60].
[18]Karazisis (2010) 31 VR 634, 662–3 [127].
The sentencing range for the crime of manslaughter is strikingly wide, as is the range of criminal conduct that can cause the relevant unlawful killing. The range of conduct commences with ‘a joke gone wrong’[19] and extends to conduct ‘just short of murder’.[20] We are of the view that his Honour was correct in characterising this offence of manslaughter as a ‘serious example of the crime of manslaughter’[21] at ‘the upper range of seriousness’.[22] This is a manslaughter verdict that can legitimately be characterised as ‘just short of murder’. His Honour also correctly characterised the recklessly causing serious injury charge as a ‘serious example of that crime’.[23]
[19]R v Forbes [2005] 160 A Crim R 1, 27 [133]–[134] (Spiegelman CJ).
[20]Ibid.
[21]Reasons [81].
[22]Ibid.
[23]Ibid [84].
In assessing the overall objective gravity of the applicant’s conduct, we consider the following factors, in combination, establish a very high level of criminality indeed:
·The applicant planned a confrontation and secreted a lethal, large knife for use if necessary in that confrontation.
·The applicant kicked in Ms Chan’s bedroom door and coerced her into the living/dining area.
·The applicant ushered other guests out of the room in which he and the two victims remained, and in which he had secreted the hunting knife.
·The applicant could not be physically deterred from attacking his partner and her lover. Minh’s attempt gave the applicant an opportunity to pause and withdraw.
·The applicant acted out of uncontrolled anger.
·Both of the applicant’s children were present in the house when he attacked Ms Chan and Mr Nguyen.
·The unlawful act of stabbing Mr Nguyen in the chest to a depth of approximately 16 to 18 cm was highly dangerous.
·The unlawful act of stabbing Ms Chan, also in the chest, was highly reckless and caused serious injury. The applicant must be taken to have realised that, when he stabbed Ms Chan, this would probably cause her serious injury but proceeded regardless of this.
·The motivation for the applicant’s conduct was jealousy in a domestic context.
·Neither Mr Nguyen nor Ms Chan was armed, nor did they present any form of physical threat to the applicant. They were defenceless.
We shall initially consider grounds 2 and 3 together, then ground 4, and finally, grounds 1 and 5.
Grounds 2 and 3: Utilitarian value and no subjective benefits of plea offer
These grounds are interrelated and can be considered together. In essence, the applicant contends that he received insufficient sentencing benefit flowing from his offer to plead guilty to manslaughter. It will be recalled that he originally made this offer before the committal proceeding and confirmed it in writing after he was committed for trial. The applicant contends that this insufficient benefit was manifested in two ways:
(k) He received an unacceptably modest benefit for the utilitarian value of his plea offer (ground 2).
(l) He received no benefit at all beyond this modest utilitarian discount, and in particular, the judge erred in declining to accord him ‘subjective benefits’, such as inferring remorse, a willingness to facilitate the course of justice and an acceptance of responsibility for his actions (ground 3).
In our view, his Honour was entitled to consider the ‘utilitarian’ value of the applicant’s offer as relatively modest in the scheme of the overall sentencing reduction available arising from the plea offer:
Furthermore, I accept that there should be no diminution in the reduction you receive for the utilitarian benefit due to the fact that in the end, you did not plead guilty to manslaughter in front of the jury, and indeed, conducted your trial on the basis that you were not guilty of any crime.
That is not to say that you are entitled to a significant discount in sentence due to your plea offer. In my view, in the overall circumstances of this case, the reduction in sentence to which you are entitled is quite modest.[24]
[24]Reasons [59]–[60].
The judge accepted that a reduction in sentence ought result from the utilitarian benefits of the plea offer. He further accepted that there should be no diminution of that reduction because the applicant did not plead guilty to the offence of manslaughter before the jury, and ran the trial on the basis that he was not guilty of any crime. When his Honour made the observation that we have cited in the previous paragraph, he was saying no more than the overall benefit from the plea offer was ‘quite modest’[25] because that benefit was confined, in his view, to the full utilitarian benefit and no more than that. In particular, the benefit did not include subjective factors such as inferring remorse, a willingness to facilitate the course of justice and an acceptance of responsibility for his actions.
[25]Ibid [60].
It follows that it is incorrect to postulate that his Honour only granted the applicant a modest benefit for the utilitarian value of his plea offer. His Honour contemplated an appropriate benefit for the utilitarian value of the offer. That is, however, only one component of the overall mitigatory benefit claimed by the applicant as emanating from the plea offer. His Honour was not satisfied of the claimed ‘subjective factors’ arising from the plea offer. His Honour’s ‘quite modest’ remarks must be understood in this context.
Turning to ground 3, in our view, the criticisms of the judge for declining to be satisfied as to the claimed ‘subjective factors’, arising from the plea offer, must be rejected. Inferences of remorse do not necessarily follow from an offer to plead guilty. The judge was entitled to conclude that the most likely explanation for the offer was that pragmatic considerations motivated it. The applicant was confronted with a seemingly powerful case for murder, and one not much less powerful for attempted murder. He faced an extremely lengthy term of imprisonment. Had his offer been accepted and had he then negotiated the attempted murder down to a lesser offence, he stood to reduce any sentence imposed by a decade or more. There was much pragmatic attraction to making the offer. The case for remorse was further undermined by the applicant’s post-offence lies (set out in paragraph 17 above) and that he conducted a defence at trial in which he denied any criminal culpability whatsoever — that the stabbings were some kind of accident.
The applicant pointed to the immediate assistance he rendered to Mr Nguyen and his participation in a 000 call. Despite this, his Honour concluded that the applicant had not exhibited genuine remorse,[26] and we consider that this conclusion was open. The post-offence lies, the pragmatic attraction of the plea offer and the conduct of the defence at trial operated powerfully, in our view, to extinguish any inference of genuine remorse that may have been available. It will be recalled that part of the immediate post-manslaughter conduct involved the applicant stabbing Ms Chan in the chest. For similar reasons, we consider that his Honour was entitled to conclude that there was no acceptance of any responsibility by the applicant or any sign of a willingness to facilitate the course of justice.[27]
[26]Ibid [72].
[27]Ibid [73].
We refuse leave to appeal on grounds 2 and 3.
Ground 4: Post-offence conduct as mitigating
This ground contends that the judge erred by not treating as a mitigating factor the conduct of the applicant immediately after the offending. The applicant argues that asking his daughter to call 000, attempting to staunch the bleeding from Mr Nguyen’s chest, and applying CPR and mouth to mouth resuscitation at the direction of the 000 operator, is conduct that ought to have been viewed as mitigating.
We do not accept this ground. For the reasons we have articulated under grounds 2 and 3, the judge was entitled to reject an inference of remorse. We are of the view that the applicant has failed to establish that his Honour did not take these matters, otherwise generally favourable to the applicant, into account when considering the overall circumstances of the offending. There was a little that could be said in the applicant’s favour, and a lot that could be said against him. We are satisfied that his Honour’s comprehensive reasons for sentencing embraced a consideration of the entirety of this post-offence conduct, favourable and unfavourable to the applicant. This conduct, of course, included the applicant’s assertions firstly that Mr Nguyen had stabbed himself, then that the two victims had stabbed each other and, later, that the stabbings were an accident.
We refuse leave to appeal on ground 4.
Grounds 5(b)–(g): Manifest excess of the individual sentences
These grounds as articulated particularise much of the ground covered earlier in these reasons. The applicant complains that no or insufficient attention was paid to the totality principle, the finding that the recklessly causing serious injury offence was a mid-range example, the offer to plead guilty, the mitigatory post-offence conduct, the finding that the applicant’s prospects of rehabilitation are ‘quite good’,[28] the fact that there was evidence of remorse, and the finding that specific deterrence does not ‘loom large in this case’.[29]
[28]Ibid [113].
[29]Ibid.
His Honour’s reasons are comprehensive and conscientious. As we have said, this Court has regularly observed that arguments of manifest excess or inadequacy do not admit much argument. If a sentence is ‘wholly outside the range’, this shortcoming will usually be obvious to any reasonable informed observer. The sentence must be shown to be ‘unreasonable’ or ‘plainly unjust’.
With these principles in mind, we consider that both sentences under scrutiny are each particularly stern, but are not wholly outside the range of his Honour’s sentencing discretion. This was a very serious example of the offence of manslaughter. The recklessly causing injury offence was also a serious example of that crime. The applicant secreted a murderous weapon under a cushion; he invited his victims into his home and stabbed them both to the chest, killing one and seriously injuring the other. These facts only have to be recited to illustrate the gravity of this offending. The judge’s stern sentence on each charge is a proper reflection of the competing factors in the sentencing exercise and within the range available for offending of this gravity, notwithstanding the mitigatory factors that counted in the applicant’s favour.
We refuse leave to appeal on grounds 5(b)–(g).
Grounds 1 and 5(a): The totality principle
The applicant was sentenced to 12 years’ imprisonment on the manslaughter charge and six years’ imprisonment on the recklessly causing serious injury charge. For the reasons set out in paragraphs 33 and 34 herein, we are of the view that the manslaughter offence was, as the judge correctly observed, at ‘the upper range of seriousness’. As we have said, we are not persuaded that the sentence of 12 years’ imprisonment is wholly outside the range of his Honour’s sentencing discretion. Whilst we are of the view that sentencing practices for this offence are of limited assistance, it seems clear that sentences at the top of the available range for manslaughter, following a plea of guilty or an offer of same, congregate at around 11 years’ imprisonment,[30] or a little higher.[31]
[30]See, eg, R v BA [2019] VSC 90; R v Mahoney [2019] VSC 740; R v Naddaf [2018] VSC 429; DPP v Wan [2018] VSC 195; Mocenigo v The Queen [2013] VSCA 231; R v Ramage [2004] VSC 508.
[31]See, eg, DPP v Ristevski [2019] VSCA 287; Papadopoulos v The Queen [2014] VSCA 63.
Similarly, we have concluded that the applicant has failed to demonstrate that the sentence imposed on charge 4 (recklessly causing serious injury) is wholly outside the range of his Honour’s sentencing discretion. We agree with his Honour that this is a ‘serious criminal offence’ and we consider the sentence of six years’ imprisonment, representing 40 per cent of the maximum sentence, to be at the top of the range, but not manifestly beyond it.
Whilst we consider that the individual sentences are within the range available to his Honour, we have had more difficulty with the order for cumulation. It will be recalled that the judge ordered that there be three years’ cumulation of the sentence on charge 4 on the sentence for manslaughter, resulting in a total effective sentence of 15 years’ imprisonment. Given our assessment that the sentences on the manslaughter charge and charge 4 are both at or close to the top of the available range, we consider that up to this point, the principle of totality has not weighed substantially in the sentencing mix. And yet, it had work to do. Having fixed upon the stern sentences for the individual charges, his Honour then turned to a consideration of a just and appropriate aggregate sentence as an appropriate measure of the total overall criminality. In DPP v Grabovac,[32] Ormiston JA, with whom Winneke P and Hedigan JA agreed, explained the various ways a sentence for multiple charges could be structured to reflect the sentencing principles of totality and proportionality.[33] The sentences on individual charges could be moderated so as to reach an appropriate total effective sentence, or alternatively, unmoderated sentences could be imposed on individual charges, and moderation (reflecting the principles of totality and proportionality) could be achieved through the moderation of orders for cumulation. Ormiston JA considered that this latter approach was preferable. This Court has agreed with that preference on several occasions,[34] as do we.
[32][1998] 1 VR 664.
[33]Ibid 675–84.
[34]See, eg, DPP v Green [2020] VSCA 23, [94]; DPP v Drake [2019] VSCA 293, [25]; Lim v The Queen [2018] VSCA 64, [25]; DPP v West [2017] VSCA 20, [48]–[49].
After some anxious consideration, we have concluded that the order for cumulation is manifestly excessive and has resulted in a head sentence that is manifestly excessive. There had to be some cumulation; so much is clear. There were two separate victims of two separate stabbings. His Honour stated in his sentencing remarks:
Whilst it is true that your stabbings of the two victims occurred as part of the one course of conduct, were very close in time, and were seemingly carried out for much the same motive, it cannot be forgotten that you carried out attacks upon not one but two distinct victims, each attack necessitating a decision by you to deliberately stab the particular individual, and then your action in pursuit of each decision. Furthermore, each act was, in its own right, a serious criminal offence. In those circumstances, it is clear in my mind that a significant degree of cumulation is required.[35]
[35]Reasons [100].
We have observed (as did his Honour) that the two offences were part of the one course of conduct, close in time, and actuated by the same relationship factors. Given the very significant overlap in time, context and conduct, and particularly, the high sentences imposed on both charges, we consider that the principles of totality and proportionality ought to have operated to moderate the order for cumulation to a considerably greater extent than, in fact, occurred.
Conclusion
We shall refuse leave to appeal on grounds 1 to 5(b)–(g).
We shall grant leave to appeal on grounds 1 and 5(a), and allow the appeal against sentence on these grounds, limited to the order for cumulation only.
We shall quash the order for cumulation and in its place, order that one year and six months of the sentence imposed on charge 4 be cumulated upon the base sentence imposed on the manslaughter offence. The total effective sentence is therefore 13 years and six months’ imprisonment. We set a minimum non-parole period of 10 years. We declare that 961 days, not including today, have been served by way of pre-sentence detention.
Charge on Indictment Offence Maximum Sentence Cumulation Alternative to charge 1 Manslaughter 20 years’ imprisonment 12 years’ imprisonment Base 4 Causing serious injury recklessly
(Crimes Act 1958 s 17)15 years’ imprisonment 6 years’ imprisonment 1 year and
6 monthsTotal effective sentence: 13 years and 6 months’ imprisonment Non-parole period: 10 years Pre-sentence detention: 961 days
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