Xian v The King
[2024] VSCA 227
•8 October 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0055 |
| JING XIAN | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BOYCE and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 August 2024 |
| DATE OF JUDGMENT: | 8 October 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 227 |
| JUDGMENT APPEALED FROM: | DPP v Hmung (County Court of Victoria, Judge O’Connell, 8 December 2023) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion – Crown conceded fresh evidence from forensic psychologist should be admitted – Appellant vulnerable in adult prison – Whether ‘special reason’ not to impose term of imprisonment and fix non-parole period of three years or more – Whether ‘substantial and compelling circumstances that are exceptional and rare’ – Appellant transferred to youth justice centre by Adult Parole Board – Appellant’s vulnerability of diminished importance – Appeal dismissed.
Children, Youth and Families Act 2005 s 471; Sentencing Act 1991 ss 10AC, 10A, 32.
DPP v Lombardo (2022) 102 MVR 19; Fisher v The Queen [2018] VSCA 222; DPP v Hudgson [2016] VSCA 254; R v Verdins (2007) 16 VR 269.
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| Counsel | |||
| Appellant: | Mr SJ Tovey | ||
| Respondent: | Ms K Argiropoulos SC with Mr L McAuliffe | ||
Solicitors | |||
| Appellant: | Melasecca Kelly & Zayler | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BOYCE JA
ORR JA:
In the early hours of 18 June 2022, the appellant, with a large group of co-offenders, engaged in three home invasion style attacks. The attacks took place against the backdrop of violent incidents involving two youth gangs, the ‘Brotherhood’ and the ‘Southside Boys’. Each of the homes was occupied by innocent family members of youths said to be associated with the Southside Boys. They were terrorised, and indeed, feared for their lives. The offenders also inflicted significant property damage at each home, as well as to nearby vehicles.
On 21 July 2023,[1] the appellant pleaded guilty to five charges arising from the attacks. On 8 December 2023, he was sentenced as follows:
[1]DPP v Hmung (County Court of Victoria, Judge O’Connell, 8 December 2023) [130] (‘Reasons’).
Charge
Offence
Maximum
Sentence
Cumulation
1
Aggravated home invasion[2]
25 years’
imprisonment4 years and 6 months’
imprisonmentBase
2
Damaging property[3]
10 years’
imprisonment12 months’
imprisonmentNil
3
Aggravated burglary[4]
25 years’
imprisonment4 years’
imprisonment6 months
4
Damaging property
10 years’
imprisonment12 months’
imprisonmentNil
5
Attempted aggravated burglary[5]
20 years’
imprisonment4 years’
imprisonment6 months
Total effective sentence
5 years and 6 months’ imprisonment
Non-parole period
3 years
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
30 days
Section 6AAA statement
Total effective sentence: 7 years; non-parole period: 4 years and 9 months
[2]Contrary to s 77B of the Crimes Act 1958.
[3]Contrary to s 197(1) of the Crimes Act 1958.
[4]Contrary to s 77 of the Crimes Act 1958.
[5]Contrary to ss 321M and 77 of the Crimes Act 1958.
On 22 March 2024,[6] the appellant filed an application for leave to appeal against sentence on two proposed grounds.[7] At the hearing of the application, he sought leave to add a third proposed ground of appeal:
Ground 3 — That there is fresh evidence which demonstrates the true significance of facts in existence at the time of sentence — being the psychological profile of the applicant and his resulting vulnerability in adult custody.
[6]Ordinarily an applicant has 28 days from the date of sentence to file an application for leave to appeal against sentence: Criminal Procedure Act 2009 s 279(1). On 30 May 2024, the applicant was granted an extension of time in which to file his application for leave to appeal.
[7]The first was that the sentence imposed on the applicant infringed the principle of parity. The second was a complaint of manifest excess.
On 19 July 2024, Taylor JA refused leave to appeal on the first and second proposed grounds of appeal. Taylor JA granted leave to appeal on the third proposed ground, which now falls for determination.
Before turning to that ground of appeal, we set out a more detailed description of the circumstances of the offending, as well as an overview of the judge’s sentencing remarks.
Circumstances of the offending
On 18 June 2022, at approximately 1:25 am, sixteen offenders, including the appellant, arrived in four vehicles at a residence in Hampton Park. The offenders were wearing hoods and masks, and carrying machetes and bats. They believed that one Hung Le, who was affiliated with the Southside Boys, was at the residence. The offenders located Hung Le’s vehicle and smashed its windows, lights, mirrors and panels, causing significant damage. They then caused similar damage to a second vehicle, before smashing multiple windows of the house (charge 2 — damaging property). Ten of the offenders, including the appellant — who was carrying a metal baseball bat — climbed in through a kitchen window (charge 1 — aggravated home invasion). The offenders proceeded to smash belongings inside the house and steal clothing. Approximately $46,000 worth of property was damaged.
Hung Le was not at home at the time of the attack, but his mother; her husband, whom one of the offenders punched in the face; and their infant daughter, were all inside the house. During the attack, they locked themselves in a bathroom and called 000.
At approximately 2:45 am, seventeen offenders, including the appellant, arrived in five vehicles at a residence in Noble Park, wearing hoods and masks, and carrying machetes. Four people were at home: Kimchher Gov, a 17-year old male affiliated with the Southside Boys; his mother; her three year-old son and her 19-year-old niece. The offenders smashed three nearby vehicles, before smashing the windows of the house, climbing in, and causing damage to the inside of the property (charge 3 — aggravated burglary; charge 4 — damaging property). The value of the damage was approximately $20,000. During the attack, the victims barricaded themselves in a bedroom and called 000. The offenders used their machetes to try to smash the door open. Kimchher Gov believed they would be killed.
It was unclear precisely what role the appellant played in this episode of offending.
The third episode of offending occurred at approximately 2:59 am. Twelve offenders, including the appellant, arrived in three vehicles at a residence in Dandenong. They were again wearing hoods and masks, and carrying machetes and bats. They were targeting one Matthew Onmai, who was at home with his mother and her husband. The offenders smashed the windows at the front and side of the house, and caused extensive damage to a vehicle parked in the driveway. The appellant used a metal baseball bat to smash one of the windows at the front of the house, before returning to the cars. Ten of the offenders attempted to enter the house by a rear window, which Matthew Onmai’s stepfather managed to prevent (charge 5 — attempted aggravated burglary). His wife locked herself in the bathroom and called 000. The offenders fled before the police arrived.
On 20 July 2022, investigators executed a search warrant at the appellant’s home. They seized the appellant’s phone, as well as clothing which matched that shown in CCTV footage of the offending. They found messages dated 17 and 18 June 2022 on the appellant’s phone which read, ‘all the boys are together … planning shits … it’s war they want it’s war they shall have’. There were also videos on the phone taken on 18 June 2022, which showed the appellant and his co-offenders gathering at Springvale Shopping Centre shortly before the first episode of offending.
When interviewed, the appellant said he had heard of the attacks but denied any involvement.
Sentencing remarks
The appellant was sentenced alongside four of his co-offenders.
After summarising the circumstances of the offending and the police investigation,[8] the judge described its impact on some of the victims.
[8]Reasons, [1]–[33].
In respect of the second episode of offending, Kimchher Gov’s mother said her life had changed immeasurably. She lives in fear of something similar happening again. The memories of the attack intrude into her everyday life, making her feel vulnerable and anxious. Her children have experienced similar symptoms. She has also been forced to sell her business because of the difficulty in coping with the trauma she went through, despite seeking counselling. Her home and car were not adequately insured and she and her children have suffered significant financial hardship.[9]
[9]Reasons, [34].
In respect of the third episode of offending, Matthew Onmai’s stepfather said the family had nowhere else to stay after the attack, and had to live in the extensively damaged house for some time. They subsequently moved house in order to feel safer, incurring substantial cost and inconvenience. He constantly worries that his family will be attacked again.[10]
[10]Reasons, [36].
Following his summary of the victim impact statements, the judge summarised the prosecution’s submissions as to the offending overall.[11] They included that:
•the offending involved three separate homes and multiple victims;
•the offences were committed in company and involved the use of weapons and disguises to conceal each offender’s identity;
•there was a degree of planning;
•the offending was motivated by grievances between rival groups or gangs;
•the intention of the offenders was to terrorise rival gang members and their families;
•the offences were committed at night on homes where young children were present;
•the victims were terrorised in their own homes, where they were entitled to feel safe; and
•in the first episode of offending, one of the victims was physically assaulted.[12]
[11]Reasons, [37]–[48].
[12]Reasons, [40].
The judge said these features, as well as the ferocity of the attacks, made the offending particularly serious. It was ‘intended to terrorise the occupants of these houses and exact retribution for a gang grievance’.[13] He referred to Fisher v The Queen, where this Court described offending of this nature as being:
intolerable and strik[ing] at the foundations of a law-abiding civil society. It demands a stern response. In such cases, general deterrence and denunciation are most important.[14]
[13]Reasons, [47]–[48].
[14]Reasons, [38], citing [2018] VSCA 222, [32] (Whelan, Beach and Kaye JJA) (‘Fisher’).
Nevertheless, the judge acknowledged that each of the offenders had entered early guilty pleas, such that they were entitled to the ‘maximum possible discount’ in sentence.[15] The judge said the pleas were significant because of the substantial savings to the community in not having to prosecute a trial involving 10 or so offenders; the victims had been spared from giving evidence; the pleas had been made during the COVID-19 pandemic, when the Court was striving to manage significant delays; and, in circumstances where it was possible to run a trial and create doubt as to the identity of a particular offender, the pleas indicated remorse.[16]
[15]Reasons, [49], [55]–[56].
[16]Reasons, [50]–[54].
The judge then turned to the specific role and personal circumstances of each offender.[17] We have already described the appellant’s role in the offending.[18]
[17]Reasons, [130]–[142].
[18]See [6]–[12] above.
The judge noted that the appellant was 18 years of age at the time of the offending.[19] He was born in China and never knew his biological father. When he was aged 9 or 10, he migrated to Australia. His mother and older brother also migrated. His mother re-partnered, and had four further children.[20]
[19]Reasons, [131].
[20]Reasons, [137].
The appellant was close to his family,[21] who provided positive character references, as did three of his friends, and his girlfriend.[22] Two further character references were provided by Mr Jim Markovski and Ms Renee Swan.
[21]Reasons, [137].
[22]Reasons, [141].
Mr Markovski was from the Les Twentyman foundation. He had coached the appellant in basketball. He described the appellant as motivated and eager with a positive attitude to training and his peers. For his young age, the appellant displayed ‘unique basketball and leadership skills’. Mr Markovski said he had been supporting the appellant to ‘get his life back on track’.[23]
[23]Reasons, [139].
Ms Swan was a family friend. She explained that her son and the appellant had attended high school together, and she had assisted them both to compete around Victoria and interstate as breakdancers. She said she was shocked by the offending. She said that since the appellant had been released on bail, he appeared to have done everything he could to prove to his family and friends that he would not offend again.[24]
[24]Reasons, [140].
The appellant had no prior convictions.[25]
[25]Reasons, [142].
The judge was told that the appellant had no difficulties with drugs or alcohol.[26]
[26]Reasons, [142].
Having canvassed the appellant’s personal circumstances, the judge turned to the submissions in mitigation made on his behalf.[27]
[27]Reasons, [143]–[149].
Counsel for the appellant informed the judge that a month or so before the offending, the appellant had committed another offence involving violence, which was due to be dealt with later in the year. Counsel submitted that although ordinarily that might be relevant to his prospects of rehabilitation, since being released on bail in respect of the home invasion attacks, the appellant had turned his life around.[28]
[28]Reasons, [143]–[144].
The judge noted that whilst on bail, the appellant had been supervised by Youth Justice. A report as to his progress had been provided to the Supreme Court on 28 November 2022. At that time he was said to be engaging well and complying with his bail conditions. In a further report of 4 July 2023, his position was summarised as follows:
Mr Xian is a 19 year-old young person, who has been under the supervision of youth justice on supervised bail for almost 11 months. Youth Justice assess that Mr Xian has done everything asked of him throughout the supervised bail and addressed all concerning issues that were identified. The supervised bail has achieved its objectives and Mr Xian requires no further youth justice supervision.[29]
[29]Reasons, [144].
The judge noted that the appellant had been living at home with his family and working in his older brother’s maintenance business. He had committed no further offences whilst on bail. He had ‘done well’.[30]
[30]Reasons, [145].
The judge then turned to counsel’s position on s 10AC(1) of the Sentencing Act 1991. That section relevantly provides that in sentencing an offender aged 18 or older for an offence of aggravated home invasion, the court:
must impose a term of imprisonment and fix … a non-parole period of not less than 3 years unless the court finds under section 10A that a special reason exists.
Section 10A, in turn, relevantly provides:
(2)For the purposes of section … 10AC … a court may make a finding that a special reason exists if —
…
(c)the offender proves on the balance of probabilities that—
(i)… at the time of the commission of the offence, he or she had impaired mental functioning[31] that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii)he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.
[31]Defined to mean a mental illness within the meaning of the Mental Health and Wellbeing Act 2022 or an intellectual disability within the meaning of the Disability Act 2006: Sentencing Act s 10A(1).
The appellant’s counsel conceded that although his client had made real progress, it could not realistically be said that there was a ‘special reason’ not to impose a term of a imprisonment with a non-parole period of three years or more.[32] Counsel accepted that despite the appellant’s youth, his plea of guilty and his prospects of rehabilitation, he must receive such a sentence.[33]
[32]Reasons, [146].
[33]Reasons, [147].
It was not in issue that such a sentence would enliven the risk of a ‘very real’ prospect of deportation upon completion of the sentence. Such a risk would render the appellant’s sentence more burdensome, given that he spent his formative years in Australia, and his entire family lived here. The appellant had no one in China.[34]
[34]Reasons, [148]–[149].
In conclusion, the judge said:
The seriousness of the offending and the statutory scheme under which you must be sentenced dictate that a term of imprisonment with a 3 year non-parole period must be imposed. That is so despite the evidence strongly suggesting that you have been able to turn your life around whilst you have been at liberty. Nevertheless, your youth, your remorse, your plea of guilty and what I accept are your very good prospects for rehabilitation will, to the extent that it is possible, mitigate the sentence to be imposed. Those considerations also in my view justify imposing a sentence which is structured so as to provide an opportunity to facilitate your rehabilitation on supervised release through parole as soon as that is practicable.[35]
[35]Reasons, [150].
Application for leave to appeal
As we have indicated,[36] the only ground of appeal that requires determination is one founded on fresh evidence.
[36]See [3]–[5] above.
The appellant’s present legal representatives (who did not represent him on the plea) informed us that in the course of preparing for the appellant’s appeal, they became concerned as to his mental functioning. They referred him to a forensic psychologist, Mr Luke Armstrong. On 4 June 2024, Mr Armstrong conducted a face-to-face assessment of the appellant, following which two reports were produced: one dated 20 June 2024, and another dated 8 July 2024.
The appellant says the Court should receive these reports on the basis that they demonstrate the true significance of facts in existence at the time of sentence, being the true state of the appellant’s mental functioning, his resulting vulnerability in adult custody and the substantial burden of imprisonment upon him. Alternatively, the appellant says the reports should be admitted in the Court’s discretion, to avoid a miscarriage of justice.
The respondent concedes that the reports are admissible for each of these reasons.
We proceed on the basis of that concession and treat the sentencing discretion as having been reopened.[37]
Mr Armstrong’s first report
[37]R v Nguyen [2006] VSCA 184, [37] (Redlich JA) (Maxwell P agreeing at [1], Neave JA agreeing at [2]).
In his report of 20 June 2024, Mr Armstrong detailed the appellant’s childhood, as reported by the appellant. In China, the appellant lived in his mother and grandmother’s care. His mother was often working away from home for long periods, and he cried when she was away. His grandmother struggled to control him and disciplined him using corporal punishment. He also often escaped from his grandmother’s care, and spent nights at internet cafes with adults. He said he was not subject to any coercion or sexual abuse. He recalled that his mother and older brother travelled to Australia ahead of him. When he arrived in Australia, his mother had re-partnered and given birth to another child. In his adolescence, he struggled academically and missed a lot of secondary school as a result of truancy. In Year 11, he became acquainted with a new social group, consisting mostly of his co-offenders. He was largely given a free rein by his mother and spent much of his time with his peer group.
In respect of the appellant’s cognitive capacities, intelligence testing revealed that the appellant’s verbal and non-verbal reasoning abilities, working memory, and processing speed were all extremely poor. Although his intelligence placed him in range of a diagnosis of ‘Mild Intellectual Disability’, he had sufficient ability to function in daily life (referred to as ‘adaptive functioning’) so as to preclude such a diagnosis.[38] A more apt diagnosis was therefore ‘Borderline Intellectual Functioning’.
[38]Mr Armstrong said: ‘I can say with confidence, that whilst IQ testing would not place him within the range of Mild Intellectual Disability, additional measures of adaptive functioning would suggest that a more appropriate description is Borderline Intellectual Functioning’. In oral submissions, counsel for the appellant informed us that there was a typographical error in that sentence, and that it should read ‘IQ test would place him within the range of Mild Intellectual Disability’.
These cognitive incapacities also resulted in social difficulties for the appellant. They made it difficult for him to read social cues, and to understand the motives of his fellow prisoners, whom he consequently feared.
Mr Armstrong also made observations about the appellant’s mental health and personality. The appellant had a ‘moderate, depressed affect’. He reported sleep disturbance, and anxiety symptoms, including ‘panic like sensations in his chest’, which Mr Armstrong suspected to be consequences of his imprisonment, his social difficulties, and his fear of his fellow prisoners. The appellant remained enmeshed with his mother, and feared being left again. This fear made him ‘compliant’ in his family, and likely to follow his peers. This aspect of his personality, which Mr Armstrong suspected was one feature of a ‘Dependent Personality Disorder’, likely influenced his decision to offend.
Mr Armstrong opined that the appellant was an ‘extremely vulnerable’ offender because:
(1)His extremely low to borderline intellectual functioning and social difficulties made him a target for being manipulated and harmed, both physically and psychologically, by more sophisticated offenders.
(2)His yearning to be part of a group, and to be accepted, approved and nurtured, also made him vulnerable to being influenced by other prisoners.
In conclusion, Mr Armstrong recommended, given the appellant’s impaired intellectual functioning, that he be provided intensive support. A mentor program for young offenders would be ideal to protect him from corrupting influences. Mr Armstrong had ‘grave concerns’ about the appellant’s capacity to rehabilitate in an adult prison.
Mr Armstrong’s second report
Mr Armstrong’s second report dated 8 July 2024, which he referred to as an ‘addendum’ to his first report, appears to have been written in response to an enquiry by the appellant’s legal representatives as to whether the appellant met the criteria for a ‘special reason’ contained in s 10A(2)(c)(i) or (ii) of the Sentencing Act.
In relation to s 10A(2)(c)(ii), Mr Armstrong said that he understood that for a ‘special reason’ to be made out, the offender must have a mental illness within the meaning of the Mental Health and Wellbeing Act 2022 or an intellectual disability within the meaning of the Disability Act 2006.
Section 4 of the Mental Health and Wellbeing Act relevantly defines ‘mental illness’:
4 Meaning of mental illness in this Act
(1)Mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.
(2)A person is not to be considered to have mental illness by reason only of any one or more of the following —
…
(k) that the person is intellectually disabled[.]
Section 3 of the Disability Act defines ‘intellectual disability’:
intellectual disability, in relation to a person over the age of 5 years, means the concurrent existence of —
(a)significant sub-average general intellectual functioning; and
(b)significant deficits in adaptive behaviour —
each of which became manifest before the age of 18 years[.]
Mr Armstrong opined that although the appellant presented with features of a mental disorder, in that he had features of a Dependent Personality Disorder, his diagnosis did not meet the definition of ‘mental illness’ in the Mental Health and Wellbeing Act.
Mr Armstrong opined that the appellant’s diagnosis fulfilled paragraph (a) of the definition of ‘intellectual disability’ in the Disability Act, and it ‘incompletely’ fulfilled paragraph (b), pertaining to adaptive behaviour. The appellant’s deficits in adaptive behaviour ‘overlap[ped]’ with that of someone with an intellectual disability. The overlapping features that made the burden of imprisonment disproportionately high for the appellant were said to be:
(1)His significant deficits in social functioning. He could not perceive social cues, and was gullible. This made him a target for manipulation, as well as physical and psychological harm, by other prisoners.
(2)His ability to communicate was more ‘concrete’ than his age mates. He was also unable to properly regulate his emotions and behaviour. This made his behaviour provocative, and a beacon for other prisoners to stand over and exploit him.
For these reasons, although the appellant’s psychological profile did not ‘fulfil the “special reasons” threshold’, his impaired intellectual functioning made him ‘subject to substantially and materially greater than the ordinary burden or risks of imprisonment’.
In relation to s 10A(2)(c)(i), Mr Armstrong affirmed that the appellant’s personality issues and Borderline Intellectual Functioning were ‘influential’ in his offending, but ‘did not in absolute terms cause him to offend’. The appellant’s participation in the gang helped to counter his experience of loneliness. Meanwhile, his intellectual incapacities, and consequent social difficulties, meant that he did not have the ability to extricate himself from the gang’s offending.
Transfer to youth justice facility
In the week prior to the hearing, the appellant’s legal representatives informed us that from May 2024, they had been assisting the appellant to obtain a direction, pursuant to s 471 of the Children, Youth and Families Act 2005, that he be transferred to a youth justice centre,[39] and that in July 2024, the appellant had been so transferred.
[39]Section 471(1) of the Children, Youth and Families Act relevantly provides that the Adult Parole Board, may, if it considers it appropriate, direct that a person under the age of 21 years be transferred from an adult prison to a youth justice centre if it is satisfied, after considering a report from the Department of Human Services, that the person is suitable for detention in a youth justice centre.
At the hearing of the appeal, counsel for the appellant informed us that, as at that date, the appellant remained at a youth justice centre.
Appellant’s submissions
The appellant relied upon Mr Armstrong’s reports to advance two contentions.
First, he contended that the evidence of Mr Armstrong, in conjunction with other facts in this case, meant that there are now ‘substantial and compelling circumstances that are exceptional and rare and that justify’ a finding that there is a ‘special reason’ under s 10A(2)(e) of the Sentencing Act not to impose a term of imprisonment and a non-parole period of three years or more.[40] If this contention is successful, the appellant submitted that the appropriate disposition is a youth justice centre order.
[40]As required by s 10AC(1) of the Sentencing Act.
Secondly, he contended that if this Court finds that no ‘special reason’ exists, we should still impose a lesser term of imprisonment than that originally imposed by the judge.
In support of his primary contention that a ‘special reason’ exists, the appellant called in aid the following factors:
(a)the absence of actual or intended physical violence on the part of the appellant against any person as part of the attacks;
(b)the appellant’s early plea of guilty, which we have noted was described by the judge as entitling him to the ‘maximum possible discount’;[41]
(c)the appellant’s young age at the time of offending;
(d)the appellant’s remorse, including his efforts at reformation;
(e)the appellant’s lack of prior criminal history;
(f)the appellant’s psychological profile as described by Mr Armstrong, which includes Borderline Intellectual Functioning and features of a Dependent Personality Disorder;[42]
(g)the appellant’s extreme vulnerability in an adult prison setting as described by Mr Armstrong, such that he is subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment’;
(h)Mr Armstrong’s opinion that ‘Verdins[43] limbs 2, 5 and 6’ are ‘enlivened’; and
(i)the appellant’s risk of being deported after serving his sentence, which would be particularly burdensome because he spent his formative years in Australia, and has no one to support him in China.
[41]Reasons, [49]. In this connection, the appellant submits that although s 10A(2B)(c)(ii) of the Sentencing Act prohibits this Court from having regard to an ‘early guilty plea’, his guilty plea, putting aside its timing, may still be taken into account.
[42]In this connection, the appellant submitted that although Mr Armstrong did not address the impact of his Borderline Intellectual Functioning in the context of a youth justice centre, this Court could still find it was ‘reasonably likely to have an impact, albeit at a reduced level’.
[43](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).
The appellant emphasised that in determining whether ‘substantial and compelling circumstances’ exist, s 10A(3)(b) of the Sentencing Act directs the court to have regard to the cumulative impact of the circumstances of the case. He refers to DPP v Lombardo, where this Court said, of an analogous provision to s 10A(2)(e):
It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.[44]
[44](2022) 102 MVR 19, 38 [72] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204 (‘Lombardo’).
Further, the appellant emphasised that Mr Armstrong found that he was subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment’. Accordingly, a ‘special reason’ would have existed pursuant to s 10A(2)(c)(ii) of the Sentencing Act, but for his diagnosis falling short of the definition of ‘impaired mental functioning’ in s 10A(1) of the Act.
The appellant acknowledged that pursuant to s 32(2C) of the Sentencing Act, in sentencing a young offender for a ‘category A serious youth offence’, which includes aggravated home invasion, this Court cannot make a youth justice centre order unless it is satisfied that ‘exceptional circumstances’ exist. However, he said if this Court finds that there are ‘substantial and compelling circumstances that are exceptional and rare and that justify’ a finding that a ‘special reason’ exists under s 10A(2)(e), then it should also find that ‘exceptional circumstances’ exist within the meaning of s 32(2C).
We asked counsel whether the fact that the appellant is currently housed in a youth justice centre bore on his ability to satisfy the criteria in s 10A(2)(e) of the Sentencing Act. The appellant’s response was that although the Court could have regard to that fact, it was of little weight. He said it could not be assumed that he would remain in a youth justice centre, as the same legislation that permitted him to be transferred from an adult prison to a youth justice centre also permitted him to be transferred back.[45] There was a ‘prospect’ that, unless a youth justice order was made by this Court, this would occur. Further, the decision of the Adult Parole Board to transfer him to a youth justice centre was said to underline and support the opinions given by Mr Armstrong in his reports.[46]
[45]Presumably this was a reference to s 473(1) of the Children, Youth and Families Act, which relevantly provides that the Youth Parole Board, may, if it considers it appropriate, direct that a person over the age of 16 be transferred from a youth justice centre to an adult prison, after considering a report from the Department of Human Services.
[46]The report from the Department of Human Services which the Adult Parole Board must have considered when ordering the appellant’s transfer was not available to the Court.
The appellant also said that s 5(2AA)(a) of the Sentencing Act has no application in this case. That provision prevents a court, in sentencing an offender, from having regard to ‘any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action’. Section 5(2AA)(a) did not apply because any executive action that might result in the appellant being transferred back to adult prison would not affect the length of time he spends in custody.
Later, in his reply submissions, the appellant changed his position on the relevance of the appellant’s status as a person who is currently housed in a youth justice centre. He said we should disregard that fact. In support of this submission he referred to the heading of s 10AC of the Sentencing Act, which reads ‘Custodial sentence must be imposed for offence of aggravated home invasion’. He referred also to s 10A(3)(ad), which provides that in determining whether there are ‘substantial and compelling circumstances’, the court must have regard to ‘Parliament’s intention that a sentence of imprisonment should ordinarily be imposed’. The proper focus of the question of whether there are ‘substantial and compelling circumstances’ is, therefore, whether a sentence of imprisonment should be imposed. It follows that this Court should not concern itself with where the appellant is located at present, but rather, the sentence he is currently serving. That sentence is a term of imprisonment (in adult prison), as imposed by the judge.
In support of his secondary contention that if this Court does not find that a ‘special reason’ exists, it should still impose a lesser term of imprisonment than that imposed by the judge, the appellant emphasised that on the plea, the judge was not aware that he had any psychological issues. He had not been assessed by a psychologist or psychiatrist in the lead up to the plea hearing and so no report had been placed before the judge.
Respondent’s submissions
The respondent contended that notwithstanding the admission of Mr Armstrong’s reports, no ‘special reason’ exists, and no different term of imprisonment should be imposed.
The respondent made the following observations about Mr Armstrong’s reports:
(a)In the first report, Mr Armstrong merely expressed a suspicion that the appellant had features of a Dependent Personality Disorder.
(b)In the first report, Mr Armstrong described the appellant’s low intelligence as a ‘secondary factor’ which influenced his offending and which may make him vulnerable in custody.[47]
(c)In the second report, Mr Armstrong said the appellant did not meet the threshold for establishing a ‘special reason’ within the meaning of s 10A(2)(c) of the Sentencing Act.
[47]The respondent appears to have slightly mischaracterised Mr Armstrong’s opinion. Mr Armstrong’s opinion was that the appellant’s low intelligence was a ‘secondary factor’ which influenced his offending, but not a ‘secondary factor’ which may make him vulnerable in custody.
The respondent accepted that based on the reports of Mr Armstrong, ‘Verdins[48] limbs 2 and 5 should be given some weight’. However, the respondent said there is an insufficient evidentiary basis to ‘enliven Verdins limb 6’.
[48](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
The respondent made four submissions directed towards the difficulty of showing ‘substantial and compelling circumstances that are exceptional and rare and that justify’ finding that a ‘special reason’ exists:
(1)First, the respondent referred to the high bar created by the express terms of s 10A(2)(e) of the Sentencing Act.
(2)Secondly, the respondent referred to the further limitations imposed by s 10A(2B) of the Act, which relevantly provides that the court must regard general deterrence and denunciation as having greater importance than other purposes of sentencing and the offender’s personal circumstances; and the court must not have regard to the offender’s early guilty plea or prospects of rehabilitation.
(3)Thirdly, the respondent pointed to s 10A(3)(ad), which provides that the court must have regard to the Parliament’s intention that a sentence of imprisonment with a non-parole period of three years or more should ordinarily be fixed for an offence of aggravated home invasion.
(4)Finally, the respondent referred to decisions of this Court which emphasise the ‘extraordinarily stringent’ requirements of s 10A(2)(e).[49]
[49]The respondent referred to: DPP v Bowen (2021) 65 VR 385, 388 [11] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355; Lombardo (2022) 102 MVR 19, 37 [66] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204; Buckley v The Queen (2022) 71 VR 218; [2022] VSCA 138; DPP v Hudgson [2016] VSCA 254; Farmer v The Queen [2020] VSCA 140.
Turning to the nature of the offending in this case, the respondent submitted that it was ‘especially grave’, involving:
(a)gang related offending, committed in a large group;
(b)a degree of planning, evidenced by the messages found on the appellant’s phone and the group meeting at a shopping centre prior to the offending;
(c)the use of disguises and weapons by the group;
(d)ferocious conduct including substantial property damage;
(e)terror inflicted on the occupants who were at home;
(f)an aggravated burglary and an attempted aggravated burglary committed in ‘similarly shocking circumstances’ approximately 80 minutes after the aggravated home invasion that was the subject of charge 1.
The respondent submitted that such offending is prevalent and commonly committed by young persons in company. Accordingly, general and specific deterrence, denunciation, just punishment, and community protection need to be emphasised in the sentence imposed, and the appellant’s youth is of reduced significance.[50]
[50]The respondent referred to: Makieng v The Queen [2022] VSCA 52, [44] (Priest and Kyrou JJA); Hogarth v The Queen (2012) 37 VR 658, 659 [1] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 302.
The respondent accepted that if this Court finds that a ‘special reason’[51] exists, then it may also find that ‘exceptional circumstances’ exist within the meaning of s 32(2C) of the Sentencing Act. However, even if ‘exceptional circumstances’ exist, the maximum term that may be imposed by this Court on a youth justice centre order is four years,[52] which is inadequate in all of the circumstances.
[51]Sentencing Act s 10A(2).
[52]The respondent referred to Sentencing Act s 32(3)(b).
As to the appellant’s present location in a youth justice centre, the respondent submitted that this made it more difficult to show ‘substantial and compelling circumstances’. Although nothing in the Sentencing Act directly addresses the issue, the appellant’s present location should be dealt with in a similar way to how the risk of deportation is dealt with in the case law. Those cases prevent the court from speculating on future executive action. This Court should determine this appeal on the basis that the appellant is currently in a youth justice centre.[53]
Consideration
[53]Such a submission presumably encompassed not only the question of whether there exist ‘substantial and compelling circumstances’ within the meaning of s 10A(2)(e) of the Sentencing Act, but also the question of whether this Court should impose a different term of imprisonment if it finds that no ‘special reason’ exists.
In Lombardo, in considering an analogous provision to s 10A(2)(e) of the Sentencing Act, this Court said there were two steps to answering the question whether there are ‘substantial and compelling circumstances that are exceptional and rare’:
First, the court must identify whether there are ‘substantial and compelling circumstances’. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also ‘exceptional and rare’. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests.
…
In construing the phrase ‘exceptional and rare’, it is relevant that, in the context of deciding whether circumstances are ‘substantial and compelling’, Parliament has stated its intention that imprisonment should ‘ordinarily’ be imposed for a category 2 offence. This statement of intention is expressed in moderate terms, suggesting that the ‘exceptional and rare’ requirement has a meaning closer to ‘out of the ordinary’.
On the other hand, the expression ‘out of the ordinary’, while capable of describing something that is ‘exceptional’, as well as something that is ‘rare’, does not fully capture the force of the phrase ‘exceptional and rare’. Both the expression ‘exceptional and rare’ and the legislative object that imprisonment should ‘ordinarily’ be imposed are, however, consistent with earlier case law, such as Hudgson,[54] which described provisions such as the present as requiring circumstances of a kind ‘wholly outside “run of the mill” factors typical of’ the relevant kind of offending.
Accordingly, in our view that language properly captures the meaning of the phrase ‘exceptional and rare’ in this context. It refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death.[55]
[54][2016] VSCA 254 (‘Hudgson’).
[55](2022) 102 MVR 19, 37–8 [66]–[67], [69]–[71] (McLeish, Niall and Kennedy JJA); [2022] VSCA 204 (citations omitted).
In determining whether ‘substantial and compelling circumstances’ exist, s 10A(2B)(c) of the Sentencing Act prohibits this Court from having regard to the appellant’s early guilty plea, or his prospects of rehabilitation.
Further, s 10A(3)(ad) of the Sentencing Act requires this Court to have regard to the Parliament’s intention that a sentence of imprisonment, with a non-parole period of three years or more, should ‘ordinarily’ be imposed for an offence of aggravated home invasion. Home invasions are commonly committed by groups of youths. The appellant’s age is therefore not a circumstance that can be said to be ‘wholly outside … “run of the mill” factors typically present in offending of this kind’.[56] Nor can, as was put on his behalf, a lack of intent to inflict violence upon any person, or a lack of actual violence. Many home invasions are committed with an intent to steal, vandalise, or terrorise — not necessarily to inflict violence upon persons.
[56]Hudgson [2016] VSCA 254, [112] (Weinberg, Whelan and Priest JJA).
Indeed, a significant component of the harm which such attacks cause is the terror they visit upon occupants, neighbours, and the community at large. Such attacks strike at the foundation of a civilised society. As this Court said in Fisher, they call for a stern response, and general deterrence and denunciation are most important.[57] So much is consistent with s 10A(2B)(a) of the Sentencing Act, which provides that in determining whether ‘substantial and compelling circumstances’ exist, the court must regard general deterrence and denunciation of the offender’s conduct as having greater importance than other purposes of sentencing.
[57][2018] VSCA 222, [32] (Whelan, Beach and Kaye JJA).
Section 10A(2B)(b) of the Sentencing Act also requires this Court to give less weight to the personal circumstances of the offender, than to other matters such as the nature and gravity of the offence. Although we accept that the appellant’s personal background, lack of prior convictions, the risk he may be deported, and his remorse are factors in his favour, their weight must be considered in light of this statutory requirement.
The same may also be said of the appellant’s psychological profile as assessed by Mr Armstrong. In any event, as the respondent noted, Mr Armstrong did not provide a conclusive diagnosis of ‘Dependent Personality Disorder’, expressing only a suspicion that the appellant may have features of such a disorder.[58]
[58]Although the view that the appellant had such features was expressed in less equivocal language in Mr Armstrong’s report of 8 July 2024, we do not take that as a resiling from his position in his report of 20 June 2024 that he ‘suspect[ed] there are … features of a Dependent Personality Disorder’ and he was ‘reluctant to diagnos[e] him fully at this time’.
Those features, which included a ‘yearning to be part of a group, to be accepted, approved and nurtured’, and a ‘fixation with an underlying fear of being left to look after himself’, are desires which commonly drive offenders to join and participate in the criminal activities of gangs, who in turn are common culprits of home invasion attacks. Such features are not ‘wholly outside … “run of the mill” factors typically present in offending of the kind’.[59]
[59]Hudgson [2016] VSCA 254, [112] (Weinberg, Whelan and Priest JJA).
As for the appellant’s cognitive and social incapacities, and his emotional and mental health issues, taken in conjunction, they appear to be, at best, of moderate seriousness. Thus Mr Armstrong refrained from diagnosing the appellant with an ‘Intellectual Disability’, by virtue of his sufficient capacity to function in daily life (referred to as ‘adaptive functioning’). His ‘sleep disturbance’ and ‘anxiety symptoms’ were also self-reported, and in vague terms, save for ‘panic like sensations in his chest’.
Nonetheless, we accept, as did the respondent, that the appellant’s psychological profile means that imprisonment will weigh more heavily on him.[60] We accept also that it should ‘have a bearing’ on the kind of sentence to be imposed and the conditions in which it should be served.[61]
[60]Verdins (2007) 16 VR 269, 276 [32(5)] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[61]Verdins (2007) 16 VR 269, 276 [32(2)] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
However, the vulnerabilities of the appellant identified by Mr Armstrong (such as to manipulation, and physical and psychological harm) were in the context of incarceration in an adult prison.
As we have said, the appellant invites us to focus on the words ‘Custodial sentence’ in the heading to s 10AC, and the words ‘Parliament’s intention that a sentence of imprisonment should ordinarily be imposed’ in s 10A(3)(ad) of the Sentencing Act. These words are said to direct the court’s attention to the appropriateness of a sentence of imprisonment, without regard to the appellant’s present location in a youth justice centre. There is no basis in the statute for that position. To the contrary, the personal circumstances of the offender are relevant to a court’s consideration of whether there are ‘substantial and compelling circumstances’. So much is evident from s 10A(2B)(b) of the Sentencing Act, which is predicated on a court taking into account the ‘personal circumstances’ of the offender. Plainly, the appellant’s present location in a youth justice centre forms part of his personal circumstances.
Indeed, the appellant asks us to ignore his present location in a youth justice centre, yet in the same breath asks us to take into account the fact that he is a young person with psychological issues and particular vulnerabilities. There is no logical basis to distinguish the facts which the appellant seeks to emphasise from those which he seeks to exclude from our consideration. All of the appellant’s personal circumstances are properly to be taken into account.
It follows that the psychological issues reported by Mr Armstrong are of diminished weight. Their practical import is that the appellant is vulnerable to being manipulated and harmed by more sophisticated offenders in adult prison — and his symptoms of anxiety flow from fear of such harm. He is no longer in that environment. Realistically, it was only Mr Armstrong’s opinion that the appellant was particularly vulnerable in an adult prison setting which came anywhere near to establishing a ‘special reason’ for the purposes of s 10A(2)(e) of the Sentencing Act. The appellant’s indefinite removal from that setting deprived this aspect of Mr Armstrong’s opinion of any real force.
For completeness, we accept the respondent’s submission that there is insufficient evidence to ‘enliven Verdins limb 6’, that is, to find that there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health so as to mitigate the need for punishment.[62] There is little in Mr Armstrong’s reports to suggest that the appellant’s mental health may be adversely affected by imprisonment (save for his anxiety being attributed to ‘fear of his prison peers, many of whom are much older than himself’), let alone there being a ‘serious’ risk of a ‘significant’ adverse effect.
[62](2007) 16 VR 269, 276 [32(6)] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
As for the ‘prospect’ that the appellant may be transferred back to an adult prison, regardless of whether such prospect may be taken into account, it suffices to say that in the appellant’s case it does not rise above mere speculation. Further, the solution proposed by the appellant to mitigate this ‘prospect’ was for this Court to impose a youth justice centre order. The maximum period for which this Court may direct that an offender be detained in a youth justice centre is four years.[63] We accept the respondent’s submission that in all of the circumstances of this offending, such a sentence would be inadequate.
[63]Sentencing Act s 32(3)(b).
We are therefore not persuaded that ‘substantial and compelling circumstances’ exist within the meaning of s 10A(2)(e) of the Sentencing Act, let alone circumstances that are ‘exceptional and rare’.
The observations we have made in respect of Mr Armstrong’s reports being of diminished weight given the appellant’s present location are equally apt in addressing the appellant’s secondary contention, that this Court should impose a lesser sentence even if it finds that no ‘special reason’ exists.
In all of the circumstances, we are not persuaded that a lesser sentence should be imposed.[64] As the respondent submitted, the appellant’s offending was especially grave. It was committed in a large group in the early hours of the morning, with the intention of terrorising the occupants of three separate homes. The appellant was wielding a metal baseball bat. The attacks were committed with ferocity and callousness. During the attacks on the first and second houses, there were young children at home. The victims have undergone significant and lasting trauma as a result of the offending. As we have said, offending of this kind strikes at the foundation of a civilised society, and considerations of general deterrence and denunciation must loom large.
[64]Criminal Procedure Act 2009 s 281(1)(b). See Kentwell v The Queen (2014) 252 CLR 601, 617–19 [42]–[43] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.
Conclusion
For these reasons, the appeal will be dismissed.
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