Wang v The King
[2024] VSCA 97
•20 May 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0172 |
| EMMANUEL WANG | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 April 2024 |
| DATE OF JUDGMENT: | 20 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 97 |
| JUDGMENT APPEALED FROM: | [2023] VCC (Judge Wischusen) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Sentence – Charges of aggravated burglary and theft – Charges put on complicity basis – Whether judge assessed gravity of offending by reference to matters not the subject of any charge – Whether judge failed to afford procedural fairness – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | |||
| Applicants: | Mr J Connolly | ||
| Respondent/s: | Mr J O’Connor | ||
Solicitors | |||
| Applicants: | Valos Black & Associates | ||
| Respondent/s: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
Introduction and overview
On 16 August 2023, following an earlier plea of guilty to three charges of aggravated burglary and three charges of theft, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Aggravated Burglary[1] | 25 years | 4 years | Base |
| 2 | Theft[2] | 10 years | 6 months | 1 month |
| 3 | Aggravated Burglary | 25 years | 2 years | 6 months |
| 4 | Theft | 10 years | 6 months | 1 month |
| 5 | Aggravated Burglary | 25 years | 3 years and 6 months | 12 months |
| 6 | Theft | 10 years | 6 months | 1 month |
| Total Effective Sentence: | 5 years and 9 months’ imprisonment | |||
| Non-Parole Period: | 3 years and 6 months | |||
| Pre-sentence Detention: | 372 days | |||
| Section 6AAA Statement: | 9 years’ imprisonment with a non-parole period of 6 years and 6 months | |||
| Other Relevant Orders: N/A | ||||
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 74 of the Crimes Act 1958.
By application dated 28 September 2023 the applicant seeks leave to appeal against his sentence on the following grounds:
1.There was an error in each of the individual sentences imposed, the orders for cumulation and the non-parole period by reason of the learned sentencing judge:
(a)Impermissibly, in assessing the gravity of the Applicant’s offending, having regard to matters which were not the subject of any charge against the Applicant; or
(b)Failing to afford the Applicant procedural fairness before taking those matters into account.
2.The individual sentences imposed on the charges, the total effective sentence of imprisonment and non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances. In particular the learned sentencing judge gave insufficient weight to the Applicant’s youth, prospects of rehabilitation, plea of guilty and the principle of parity.
For the reasons that follow leave to appeal should be refused.
Summary of offending
Each set of charges, comprising one charge of aggravated burglary and one charge of theft, relates to one of three incidents on 17 October 2020 in each of which the applicant, in company with other males, stole a vehicle after some of the group, armed and/or knowing a person was present, entered a residential dwelling to steal the car keys.
In the early hours of 17 October 2020 the applicant and 4 others tried opening the door handles of multiple cars parked in Leafy Circuit, Cranbourne East. The group made its way to Marshy Avenue. A resident of that street was watching television in his home when he heard his front door handle rattle. The resident opened the door and saw one male standing about three metres away and another four or five males standing in his neighbour’s driveway. The male closest to him apologised before walking down the street with the others. The resident watched them approach another house in Marshy Avenue.
Incident 1
In that next house a man, woman and their seven year old child were asleep. At about 5:45 am the man heard banging on his front door. He ran to it and saw it open. Three males were outside. He pushed the door closed, locking it and engaging a chain. The three males broke the door open and entered the house (charge 1).
Some of the males – not including the accused – punched the man to the face.
The woman appeared. The man ran for help. The males demanded keys and money from the woman, saying that they did not want to hurt her but they had a gun. In the kitchen one of the males held a knife to her throat and demanded her keys. She gave them her keys, including to a white BMW (charge 2).
The males were unable to open the car. One of them demanded that the woman start it. She did. The man saw three males sitting in the BMW and a fourth holding three knives from his own kitchen. He observed the males reverse the car and drive away. Property from the BMW, including a knife taken from the house, was later dumped in a street in Clyde North.
The incident was captured visually and audibly on CCTV footage.[3]
[3]That footage was played during the plea hearing. Both the man and woman can be heard screaming. The phrases ‘give me the keys’, ‘I’ll shoot you’, ‘I have a gun’ and ‘get the gun’ can also be heard.
The resident from the first house on Marshy Avenue called 000.
Incident 2
In Selandra Boulevard in Clyde North, the BMW collided with a Toyota Yaris parked outside a house. The collision activated the airbags and rendered the BMW stationary.
A resident of the street, who had started his Hyundai Elandra in his garage, came out. Another member of his household was still asleep inside the house. He observed a group of males. He then heard the Hyundai’s engine rev and saw it being reversed out of his driveway (charge 3). He ran to try and stop it but was hit by the driver’s door on the hip, which forced him to the ground. When he stood, he was punched once to the head by one of the males – but not the applicant. The males then entered the Hyundai and drove away (charge 4).
Incident 3
The males drove the Hyundai to Bevan Avenue in Clayton South. They parked outside a block of four units. Two of the males knocked on the door of one unit. Four persons were present inside. The door was closed but not locked. One of the residents went to the door and observed two males peering through the window. The resident held his hand against the door handle and, in answer to a question from one of them, said he had not seen a dog. The door was kicked. The resident locked the door and stepped back. The door was kicked again and with sufficient force to make the door frame move.
One of the males said ‘open the door or I’ll kill you’. The resident called 000. The door broke and the male entered the house (charge 5).
The resident yelled to his housemates to stay in their rooms. He ran outside. One of the males, holding a large hammer, approached his girlfriend’s Lexus sedan with the key which had previously been in the unit. When the resident approached, the male raised the hammer. The male started the Lexus. The second male walked out holding a screwdriver. He slapped the phone out of the resident’s hand and punched him to the jaw. He then walked away while the first male drove out of the driveway.
The resident saw the Lexus follow the Hyundai at speed before seeing the Hyundai crash into five parked cars. The Lexus then crashed into the Hyundai. The males all entered the Lexus and drove off. CCTV footage shows the applicant exiting the Hyundai and entering the Lexus.
Arrest and police investigation
In the late afternoon police became aware that the Lexus was parked in a Cranbourne street in which one of the co-accused lived. The applicant and three others were arrested. All four were drug affected to the extent that a forensic medical officer deemed each unfit for interview.
The applicant’s DNA was found on the driver’s side airbag of the BMW as well as on a cap recovered from it. It was also found on a water bottle and glove found in the Hyundai. A Snapchat video from a co-offender’s phone depicts the applicant driving the Lexus.[4]
[4]A summary charge of driving whilst disqualified was remitted to the Magistrates’ Court.
Sentencing Reasons
The judge commenced his sentencing Reasons (‘Reasons’) noting the maximum penalties for the offences.[5] The judge noted the applicant’s age, being 19 years at the time of the offending and 22 years at the time of the plea.[6]
[5]Reasons, [2].
[6]Reasons, [3].
Next the judge summarised the applicant’s offending[7] specifically stating at the beginning:
On the plea it was explained that – as none of the victims were able to identify which of the group of males was involved in the criminal activities set out in the opening – each of the charges is put on a complicity basis. So that it could not be said, for example, that you entered any particular house or carried out any of the assaults or threats described (and so these were not aggravating features of the offences for which you are to be sentenced), but that you participated in the activities as part of the joint criminal enterprise of the group of males referred to, who entered each of the three premises with intent to steal, and stole the three vehicles.[8]
[7]Reasons, [4]-[27].
[8]Reasons, [5].
The judge also later expressly recorded that it was not alleged that the applicant assaulted either the residents of Marshy Avenue[9] or of Solander Boulevard.[10]
[9]Reasons, [7].
[10]Reasons, [14].
Next the judge summarised the victim impact statements, noting the lasting effect on each of the victims.[11]
[11]Reasons, [28]-[29].
The judge said that the applicant admitted his criminal history. It was limited but involved offences of violence in company and breaches of bail of a gravity sufficient to warrant a sentence of imprisonment and a community corrections order with supervision, mental health, offending behaviour and judicial monitoring conditions. The applicant was subject to that order at the time of the offending. The judge also noted the grant and revocation of bail for the instant charges and the terms of imprisonment served on unrelated matters which were themselves breaches of bail for the offences.[12]
[12]Reasons, [30]-[32].
The complex procedural history, involving an initial indication of pleas of guilty to charges of home invasion and carjacking at a committal mention, a later statement of an intention to contest the charges, a sentence indication, s 198B Criminal Procedure Act 2009 cross-examination of two witnesses and ultimate resolution during pre-trial discussions was detailed.[13]
[13]Reasons, [33].
The judge then summarised the defence submissions.[14] While the applicant had not demonstrated remorse, the utilitarian benefit of his guilty plea was amplified because of the pandemic. His time in custody had been affected by the COVID-19 restrictions. His family background was stable. He was the third child in a sibship of eight born to parents of South Sudanese origin. His parents were supportive and prepared to have the applicant live with them again in the family home. He suffered some racial harassment and bullying at school and in the community. He completed VCAL and had been employed since leaving school. The applicant was a very talented athlete, particularly in basketball in which he played at a very high level. His hopes of obtaining a basketball scholarship to the United States were dashed when, at the age of 17, the applicant suffered a meniscal injury to his knee. Following that injury he began to associate with idle and drug-taking young men. In mid-2021, whilst on bail for the offences, his own family home was subject to an invasion in which his mother was injured and the applicant sustained significant injuries to his hands. Those injuries further compromised his prospect of ever returning to competitive basketball. The applicant now aspires to be an electrician.
[14]Reasons, [34]-[51].
Ian Mackinnon, a psychologist, diagnosed the applicant with a depressive disorder and referred to previous admissions to a psychiatric ward, probably connected to the applicant’s use of illicit substances. He said the applicant did not have any significant adverse response to prison life. The applicant had overcome his substance use disorder through abstinence on remand. There was no reliance on Verdins[15] principles. Mr Mackinnon considered the applicant to pose a continuing risk of violent offending until he can maintain himself appropriately in the community for an extended period without offending. Mr Mackinnon opined that further confinement might lead the applicant to abandon his positive aspirations.
[15]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
Given the applicant’s youth, the principles in Mills[16] were relevant, as was parity with the co-offenders. The judge noted that the weight to be given to youth wanes as the gravity of offending increases. The judge further noted that all the co-offenders were younger than the applicant and some pleaded guilty at a much earlier stage to a lesser collection of offences. The judge again recorded the submission that unlike some of the co-offenders, the applicant was to be sentenced on the basis that he did not enter any of the properties or commit any of the assaults. It was submitted that a sentence of imprisonment in combination with a community corrections order was within range and best promoted the community interest in the applicant’s rehabilitation.
[16]R v Mills [1998] 4 VR 235 (Mills).
Next the judge detailed the prosecution submissions.[17] The aggravated burglaries were all inherently serious, although the first was the most grave and the second the least. The prosecution conceded that the applicant was not directly involved in any confrontation with the victims of the second and third burglaries. The applicant’s rehabilitation was of the utmost importance, but his prospects for rehabilitation were guarded in light of his short but serious criminal history, the fact that he was subject to a community corrections order at the time of offending and had offended a number of times whilst on bail for the offences.
[17]Reasons, [52]-[54].
The judge then said the following:
Against the matters raised in mitigation on your behalf in the course of the plea must be balanced the fact that this crime spree, that you took part in, caused great fear to a considerable number of people of all ages who should have felt entitled to feel safe in their homes on this night. Counsel for the Director was careful to make clear that you are not to be sentenced on the basis that you entered any particular residence or that you committed any of the acts of violence – rather, you are to be sentenced only for your complicity in the charged offences by your presence at each of the places at which the charged offences were committed. I have approached my assessment of the gravity your (sic) offending in this way. Your party committed acts of violence to obtain entry and made threats with weapons in order to steal the three vehicles that were, in the end, crashed or damaged. The violence involved in the manner of entry to the first and third houses must have been truly terrifying to those on the other side of the locked front doors, as must the actions of the intruders once inside the houses. Despite the importance of your youth as a sentencing consideration, the offending here is in my view of such gravity that general and specific deterrence must be given some weight in the sentencing consideration. Further, I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and to otherwise impose just punishment.[18]
[18]Reasons, [55].
The applicant was then sentenced as set out above.
Proposed Ground 1
Applicant’s contentions
By reference to the three sentences italicised in the Judge’s reasons in paragraph [30] above, the applicant contended in his written case that the judge erred by taking into account offences with which the applicant was not charged and thereby erred in the assessment of the gravity of the applicant’s offending. The applicant was not involved in the assault or armed robbery/carjacking of the man and woman resident in Marshy Avenue, Cranbourne East, relevant to incident 1. He was not involved with the threat to kill, use of weapons or assault of the resident of Bevan Avenue, Clayton South relevant to incident 3. As a result, a lesser sentence should be imposed.
The applicant further contended that he was denied procedural fairness because the judge did not raise with his counsel that he would be sentenced on the basis that the assessment of the gravity of his offending would be aggravated by these matters.
At the oral hearing of the application, the applicant abandoned proposed ground 1(b) concerning procedural fairness. The argument with respect to proposed ground 1(a) was refined.
The applicant submitted that the most serious incident of his offending was the aggravated burglary in incident 3 (charge 5) because it occurred after the two previous aggravated burglaries. That fixed the applicant with the knowledge of the violence used (by others) in the earlier offending. The applicant argues that it was not foreseeable to him that during incident 1 those who entered the premises would take a knife from the kitchen and use it in the manner they did. In imposing the highest individual sentence on charge 1 and making that the base sentence, it is submitted that the judge erred because it demonstrated that the applicant was sentenced for the use of the knife.
Respondent’s contentions
The respondent submits that the judge did not err in the manner contended by the applicant. When the manner in which the plea had been conducted and the Reasons as a whole are considered, the impugned sentences were nothing more than a generalised comment.
The respondent further argues that charge 1 was clearly the most serious on the indictment. That it attracted the highest individual sentence is not demonstrative of error.
Analysis
The submission of the respondent must be accepted.
Turning first to the judge’s Reasons, even if the impugned portion is examined only within the paragraph in which it appears – and which is reproduced in full in paragraph [30] above – it is clear that the sentence ‘I have approached my assessment of the gravity your (sic) offending in this way’ relates to the preceding sentence and not the following two. In that preceding sentence the judge states that the applicant fell to be sentenced for his complicity in the charged offences by his presence at the places where they were committed.
This is in keeping with the judge’s express comments at the beginning and throughout the Reasons that the applicant was not to be sentenced on the basis that he entered any particular house or carried out any of the assaults or threats described – ‘and so these were not aggravating features of the offences for which [the applicant] was to be sentenced’.[19]
[19]Reasons, [5], [7], [14], [50] and [53].
An examination of the transcript of the plea hearing, if it be necessary, also reveals that the judge clearly understood the manner in which the prosecution put the charges.
The following exchange occurred between the judge and the prosecutor:
HIS HONOUR: So in relation to the aggravated burglaries, the charges were all put on a complicity basis. You don’t contend that I can find that he performed any of the actions that the group of males undertook, but he’s responsible for what happened because he was complicit in the undertaking, which was the aggravated burglary and the theft of the motor car.
PROSECUTOR: That’s correct, Your Honour. The prosecution position is that the prosecution would not be able to prove beyond reasonable doubt that [the applicant] entered any of the three residences, given the evidence contained in the brief, so therefore he is to be sentenced on a complicity basis, and that he did not enter the premises.
HIS HONOUR: What difference does that make to his responsibility for the incidents and what took place?
PROSECUTOR: Your Honour, the prosecution would say minimal, but in any event, your Honour, he obviously hasn’t pleaded to the common law assaults, and that was agreed between the parties. He’s present and he’s aware – the prosecution says Your Honour could comfortably find of what was planned to occur, particularly in relation to incident one.
In a later exchange with the applicant’s counsel as to the gravity of the offending the following was said:
HIS HONOUR: But his contribution is the agreement to do it, and the force of arms that he provides by the numbers. Whether he goes in or out is only at the edges of responsibility for what he’s pleaded guilty to, which is aggravated burglary.
COUNSEL:Yes, in my submission there can be – his contribution to the aggravated burglaries can be differentiated from the others who have pleaded to – [Mr Nava], home invasion and carjacking and [Q], who pleaded to two assaults. He’s not guilty on those.
HIS HONOUR: No, but he is guilty of being complicit in a criminal expedition in which people went and entered the houses knowing persons to be present, committing assaults in them, stole cars. It’s very serious offending.
COUNSEL:Yes, and I’m not disagreeing with Your Honour, we’re ad idem on that.
It is clear that the judge well understood that the sentence to be imposed upon the applicant was not to be aggravated by any specific action of violence attributed to him personally. It is also clear that the judge understood that the fact that the applicant did not individually commit any act of violence did not render that violence irrelevant to the assessment of the gravity of the offences he committed as part of a joint criminal enterprise.
Both charges 1 and 5 were very serious. In each, the locked door of a residence known to be occupied was kicked in, threats were made and weapons were brandished. In neither case was the sentence imposed on the applicant aggravated by any such act committed by him. Rather, he was sentenced for his complicity in that offending. He was part of a group that together forced entry to residential premises in order to steal car keys. The aggravated burglary committed by the group relevant to charge 1 was more serious than that of charge 5, even thought it was first in time. It was more protracted, took place at 5.45 am in a house in which there was a child and involved the holding of a knife to the throat of one of the occupants. That the offending with respect to both charges was serious and that of charge 1 was relatively more so was properly reflected in the individual sentences imposed and the six months’ imprisonment difference between the head sentences.
It follows that proposed ground 1 must fail.
Proposed Ground 2
Applicant’s contentions
The applicant submits that rehabilitation was a primary consideration in his sentence given that he was 19 at the time of the offences. And, he argues, he has reasonable prospects of rehabilitation. He emphasises the great utilitarian benefit of his guilty plea and that he was charged on a complicity basis. In terms of gravity, the second aggravated burglary (charge 3) was at the lowest end of the range of seriousness.
In his written case the applicant submitted that the principle of parity was infringed. The role of the co-offender Flynn Nava[20] was more serious than that of the applicant. Nava pleaded guilty to nine charges being home invasion, carjacking, two charges of aggravated burglary, three charges of theft and two charges of assault. He received a total effective sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years. JK pleaded guilty in the Children’s Court to the same offences as the applicant and received a sentence of 18 months’ Youth Detention.
[20]A pseudonym. See DPP v Nava (a pseudonym) [2021] VCC 1540.
At the oral hearing of the application, the parity issue was abandoned. The applicant limited this ground to the aggravated burglary charges and repeated his argument under cover of proposed ground 1 that the judge erred in assessing the gravity of the offending. It was argued further that the consequence was that the judge gave the Mills considerations insufficient weight.
Respondent’s contentions
The respondent argues that the applicant’s offending was, and was conceded to be, very serious. He was on a community corrections order at the time. He was entitled to the objective benefit of his plea of guilty but not to any finding of remorse. He had breached bail for the offending on six occasions. The applicant did not have the benefit of any Verdins considerations. There was no basis for the judge to find that his prospects for rehabilitation were anything other than guarded. The judge did, in light of the applicant’s youth, prioritise rehabilitation in the instinctive synthesis but correctly tempered its weight by considerations of general and specific deterrence, denunciation and just punishment given the seriousness of the offending.
It is further submitted that the sentences for each of the aggravated burglaries distinguished appropriately between their relative seriousness and ranged between eight and 16 percent of the maximum sentence. The degree of cumulation was appropriate. The sentences for the thefts were five percent of the maximum sentence and fully justified given the circumstances of the offending. The non-parole period, being 61% of the total effective sentence, demonstrated significant allowance for the applicant’s rehabilitation.
With respect to parity, the respondent submits that general deterrence played no role in the sentence imposed on JK. Nava was also a child at the time of the offending and his prior history did not include any matters that had warranted a custodial disposition. Any sense of grievance held by the applicant is not justified.
Analysis
In my view the judge correctly assessed the gravity of the applicant’s offending, both globally and as between the charges. Before the judge the applicant’s counsel conceded, appropriately, that his offending was serious. The applicant was part of a group of young males moving as one through the suburbs for the purpose of violently entering homes and stealing cars, indifferent to the effect such actions would have on people entitled to feel safe in their homes.
In so far as the applicant’s argument rests upon an error in the assessment of the gravity of his offending, it must fail.
Further, it is clear that the judge considered and balanced all relevant sentencing principles, including the applicant’s youth and his plea of guilty. Material submitted on the plea by the applicant showed him to be a risk of further violent offending. That in combination with the applicant’s prior criminal history, his drug use, his lack of remorse and that he was on a community corrections order at the relevant time left little option but to find that his prospects for rehabilitation were guarded. In all the circumstances the individual sentences and the orders for cumulation were well within the range open to the judge in the sound exercise of his sentencing discretion. It is not reasonably arguable that the individual sentences, orders for cumulation or total effective sentence were manifestly excessive.
It follows that proposed ground 2 must fail.
Conclusion
Leave to appeal against sentence must be refused.
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