Xian v The King
[2024] VSCA 165
•19 July 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0055 |
| JING XIAN | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2024 |
| DATE OF JUDGMENT: | 19 July 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 165 |
| JUDGMENT APPEALED FROM: | DPP v Hmung & Ors [2023] VCC (Judge O'Connell) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
---
CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion, aggravated burglary and criminal damage – Serious examples of the offences – Applicant aged 18 years at time of offending – No ‘special reason’ why a term of imprisonment with a minimum non-parole period of 3 years should not be imposed for aggravated home invasion – No prior convictions – Risk of deportation – Total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Whether sentence infringed principle of parity – Whether sentence manifestly excessive – Leave to appeal on grounds of parity and manifest excess refused.
Kellway (a pseudonym) v The King [2023] VSCA 109; Nipoe v The Queen [2020] VSCA 137, referred to.
CRIMINAL LAW – Appeal – Sentence – ‘New’ or ‘fresh’ evidence – Psychological material evidencing borderline intellectual functioning, features of dependent personality disorder and extreme vulnerability in adult custody – Whether error that there was no ‘special reason’ why a term of imprisonment with a minimum non-parole period of 3 years should not be imposed for aggravated home invasion – Leave to appeal granted.
Sentencing Act 1991, ss 10AC and 10A.
Nguyen v The Queen [2006] VSCA 184, followed; Betts v The Queen (2016) 258 CLR 420; Packard (A Pseudonym) v The Queen (2022) 300 A Crim R 55; DPP v Bowen (2021) 65 VR 385; Buckley v The Queen (2022) 71 VR 218 and DPP v Lombardo [2022] VSCA 204, referred to.
---
| Counsel | |||
| Applicant: | Mr S Tovey | ||
| Respondent: | Ms E Ruddle KC | ||
Solicitors | |||
| Applicant: | Melasecca Kelly & Zayler | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
Introduction and overview
On 4 October 2023 the applicant pleaded guilty to aggravated home invasion, criminal damage (two charges), aggravated burglary and attempted aggravated burglary. On 8 December 2023 he was sentenced as follows.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Aggravated Home Invasion | 25 years’ imprisonment | 4 years and 6 months’ imprisonment | Base |
| 2 | Criminal Damage | 10 years’ imprisonment | 1 year’s imprisonment | Nil |
| 3 | Aggravated Burglary | 25 years’ imprisonment | 4 years’ imprisonment | 6 months |
| 4 | Criminal Damage | 10 years’ imprisonment | 1 year’s imprisonment | Nil |
| 5 | Attempted Aggravated Burglary | 20 years’ imprisonment | 3 years and 6 months’ imprisonment | 6 months |
| Total Effective Sentence: | 5 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 3 years | |||
| Pre-sentence Detention Declared: | 30 days | |||
| Section 6AAA Statement: | 7 years’ imprisonment with a non-parole period of 4 years and 9 months | |||
Other Relevant Orders: N/A. | ||||
The applicant now seeks leave to appeal against sentence. The proposed grounds of appeal detailed in the Notice of Application for Leave to Appeal Against Sentence are:
Ground 1: the sentence imposed on the applicant infringes the principle of parity.
Ground 2: the individual sentences imposed, orders for cumulation, total effective sentence and non-parole period were manifestly too long.
At the hearing of the application, leave was granted to add a further ground:
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.
For the reasons below, leave is granted with respect to ground 3.
Circumstances of offending
The charges relate to three incidents in the early hours of 18 June 2022 in which numerous disguised and armed offenders attended and attacked three different residential premises in suburban Melbourne.
The offending occurred against a background of rising conflict between two opposing groups of young men: the Brotherhood, a street gang from the western suburbs of which the applicant was a member; and the Southside Boys, a street gang from the south eastern suburbs. On 16 June 2022 a Brotherhood member had stabbed a Southside member. On 17 June two vehicles and several windows at the home of a Brotherhood member, Vernon Phan, had been damaged.
Messages dated 17 and 18 June 2022 about the Phan incident were later recovered by police from the applicant’s iPhone and said ‘all the boys are together … planning shits … it’s war they want it’s war they shall have’. Videos of the same dates also recovered depicted the applicant and other offenders gathering at Springvale shopping centre shortly before the first incident.
Incident one
The applicant was one of 16 offenders who arrived in four vehicles at a residential address in Hampton Park at about 1.25 am on 18 June 2022. Three people were at home at the time. The incident was captured by internal and external CCTV cameras. The offenders were wearing hoods and masks and brandishing machetes and bats. They smashed two vehicles before smashing the windows of the house. Ten of the offenders climbed through the windows and gained entry into the house. Inside the offenders smashed personal belongings and stole clothing.
Approximately $46,000 in damage was caused.
The CCTV footage depicts the applicant[1] armed with a metal baseball bat. He smashed a window at the side of the house, climbed through it and smashed the window inside before immediately leaving the house through the front door.
[1]Although disguised, the individual offenders were identified by their clothing, shoes and body shape after comparison with the CCTV footage of the first and third incidents and CCTV footage from McDonald’s on Ballarat Road, Sunshine where 15 of the offenders (including the applicant) attended immediately after the three incidents.
During the incident the residents of the house – a married couple and their baby – locked themselves in a bathroom and called 000.
Incident 2
At about 2.45 am the applicant was one of about 17 offenders who arrived in five vehicles at a Noble Park residential address. Four people were home at the time. Again the offenders were wearing hoods and masks and brandishing machetes and bats. They smashed three vehicles before smashing windows at the front and side of the house. A number of the offenders gained entry to the house by climbing through the window. The offenders caused damage to the inside of the property.
Approximately $20,000 in damage was caused to the house and vehicles.
The specific role of the applicant in the joint enterprise is unknown.
The residents of the house – a mother, her two sons aged 3 and 17 years and her 19 year old niece – barricaded themselves in the bedroom of the 17 year old during the incident and called 000.
Incident 3
At about 1.45 am a young man was at home in Dandenong with his parents. He received a phone call from a friend in Hampton Park telling him that his house had been invaded. Consequently, he and his parents sat up watching the external camera live CCTV feed.
At about 2.59 am the applicant was one of 12 offenders who arrived in three vehicles at that Dandenong address. Again the offenders were wearing hoods and masks and brandishing machetes and bats. They smashed a vehicle and the windows at the front of the house. Some of the offenders attempted to gain entry into the house via a rear window but the father of the house blocked entry using a wooden stake. The mother locked herself in the bathroom and called 000. The son heard one of the offenders yell ‘fuck South East. West on top’.
The CCTV footage depicts the applicant armed with a metal baseball bat. He smashed a window at the front of the house before returning to the cars.
When interviewed by police on 20 July 2022 the applicant said that he had heard of the incidents the subject of the charges but denied any involvement. He otherwise gave no comment answers.
Fourteen of the offenders were identified and charged. Seven have been or are to be sentenced in the County Court, the remainder in the Children’s Court.
The plea hearing
The applicant filed written submissions in advance of the plea hearing. In it the applicant acknowledged that the conduct of the group was ‘inexcusable’ and ‘undoubtedly serious’. The existence of a ‘special reason’ pursuant to s 10A of the Sentencing Act 1991 by which it would be open to the court to not impose a term of imprisonment and fix a non-parole period of not less than 3 years for the charge of aggravated home invasion[2] was disavowed. The applicant was said to have no mental health issues.
[2]Sentencing Act, s 10AC.
The acknowledgement that the applicant did not present with a ‘special reason’ was repeated at the plea hearing. No psychological report was tendered.
The applicant was 18 years old at the time of offending and 20 at the time of sentencing. His status as a young offender[3] was emphasised notwithstanding the accepted diminution in weight his youth could attract in the face of such serious offending. His plea of guilty was said to be early, of high utilitarian value, deserving of a Worboyes[4] discount and evidence of remorse. The applicant’s prospects for rehabilitation were argued to be excellent.
[3]Sentencing Act, s 3.
[4]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169 (Priest, Kaye and T Forrest JJA).
The applicant’s personal circumstances were canvassed. He was born in China and came to Australia at the age of about 9 or 10 years with little English. He did not know his biological father. He completed school to the end of year 11. Academically he did neither ‘brilliantly’ nor ‘terribly’. He was good at and enjoyed both basketball and breakdancing. He had no issues with alcohol, drugs or gambling. At the time of the offending he intended to complete VCAL at TAFE.
Once admitted to bail the applicant did well. He worked in his brother’s property maintenance business and lived at home with his mother, grandmother, step-father (whom he called father) and five siblings. Three supervised bail progress reports, a support letter from a manager at the Les Twentyman Foundation and eight character references were tendered. The applicant had one pending matter arising from an incident that predated the 18 June 2022 offending. He had no prior convictions. General deterrence and denunciation were acknowledged to be important sentencing factors. Specific deterrence was argued to be of slightly lesser weight because of his positive steps whilst on bail.
The risk of deportation was said to be ‘not insignificant’. He has no connection with China. The applicant’s entire family live in Melbourne.
Sentencing Reasons
In his Sentencing Reasons[5] the judge summarised the offending[6] and victim impact.[7]
[5]DPP v Hmung & Ors [2023] VCC (‘Reasons’). The Reasons were the joint reasons with respect to six of the seven adult offenders.
[6]Reasons, [1]-[33].
[7]Reasons, [34]-[36].
The judge then summarised the prosecution submissions applicable to all adult offenders. The offending was of a kind submitted to be inherently serious.[8] The victims suffered significant fear and trauma.[9] The judge said:
These general submissions as to the nature and gravity of this offending must be accepted. This was conduct graphically depicted in the CCTV footage, that was intended to terrorise the occupants of these houses and exact retribution for a gang grievance. It is the sort of wanton violence and destructiveness that cannot be tolerated.
All of the features of this offending highlighted by the Crown, particularly the numbers of offenders, the nature of the weapons used together with the sheer ferocity of these attacks make particularly serious examples of these offences. They must therefore be met with stern punishment.[10]
[8]Reasons, [38]. Fisher v The Queen [2018] VSCA 222, [32].
[9]Reasons, [41].
[10]Reasons, [47]-[48].
The early plea of guilty entered by the applicant was found to be significant and productive of a reduction in the sentence to be imposed ‘to the maximum extent permitted by the law’.[11]
[11]Reasons, [50]-[56].
The judge found that the applicant had ‘clearly done well’[12] since being admitted to bail and noted the observation of his mother in her reference that:
[s]ince committing this offence I have seen a huge shift in my son’s behaviour. He has stopped hanging around the people I think were leading him astray, started to pick up more shifts at work with my older son, going to the gym more often and focused on his work. I am confident he has turned the corner.[13]
[12]Reasons, [145].
[13]Reasons, [142].
A similar observation from the author of a supervised bail progress report, that the applicant had ‘done everything asked of him’, that the supervised bail had ‘achieved its objectives’ and the applicant required no further youth justice supervision was also noted.[14]
[14]Reasons, [144].
The judge said that it could not be realistically contended that the applicant came within the very narrow exceptions that could ground a special reason for not imposing a term of imprisonment and fixing a non-parole period of not less than three years in respect of the aggravated home invasion offence.[15] 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.[16]
[15]Reasons, [146]-[147].
[16]Reasons, [150].
Proposed ground 1 - parity
Applicant’s contentions
The applicant contends that the sentence imposed on one of his co-offenders – Shady John – gives rise to a clear and justifiable sense of grievance on his part.
Mr John was 27 years of age at the time of the offending. He carried and used a machete during incidents one and three. He was not affiliated with the Brotherhood. He pleaded guilty to the same charges as the applicant. He received exactly the same individual sentences and total effective sentence as the applicant. The applicant argues that while their participation in the offending was similar, the subjective circumstances of the applicant in mitigation of sentence were far more compelling than those of Mr John.
Like the applicant Mr John was at risk of deportation at the conclusion of his sentence. Unlike the applicant he had a relevant prior criminal history that included violent offending, a ‘bad anger problem’ and was assessed to be a moderate risk of reoffending. The judge accepted that the Bugmy[17] principles and limbs 5 and 6 of Verdins[18] were relevant to Mr John’s sentence but rejected that the psychological material allowed for any moderation to his moral culpability. The applicant was a young, first offender who had excellent prospects of rehabilitation. These particular factors are argued to entitle the applicant to a higher degree of lenience than Mr John.
[17]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[18]R v Verdins (2007) 16 VR 240; [2007] VSCA 102.
It is submitted that it was not open to the judge for the applicant and Mr John to receive identical sentences. Accordingly, the judge breached the principle of parity.
Respondent’s contentions
The respondent contends that the applicant’s youth and rehabilitation assumed less weight in the sentencing exercise given the seriousness of the offending.[19] So much was conceded by the applicant on the plea.
[19]The respondent referred to Makieng v The Queen [2022] VSCA 52 (Priest and Kyrou JJA) (‘Makieng’) in which an 18 year old offender sentenced to six years and four months’ imprisonment with a non-parole period of three years and nine months for a single instance of home invasion and armed robbery was held to be within range.
Further, in considering the issue of parity, the judge found there to be a number of significant matters in Mr John’s favour notwithstanding that he was significantly older than his co-offenders. He had no foreknowledge of the offending and became involved through his cousin in what he believed would be a ‘rumble’ at a carpark. His moral culpability was moderated by his exposure to extreme violence and dysfunction in his formative years. He suffered post-traumatic stress syndrome. Mr John had a solid work history. His imprisonment meant that he was separated from his young children, including a child born whilst he was on remand and whom he had not met. He faced deportation at the expiry of his sentence. He had served 382 days of pre-sentence detention. Mr John made admissions to the offending when interviewed by police. The officer conducting that interview observed him to be tearful and genuinely distressed. Mr John’s criminal history was relatively limited and involved only summary matters.
The respondent argues that the judge appropriately synthesised the respective personal circumstances of each of the applicant and Mr John. The sentences imposed do not breach the principle of parity.
Analysis
The parity principle was recently summarised in Kellway (a pseudonym) v The King.[20]
The purpose of parity in sentencing is to ensure consistency in punishment.[21] As Kaye AJA (as his Honour then was) said in Dawid v Director of Public Prosecutions, ‘the principle of parity is based on the broad principle of equal justice’.[22] Significant disparities in sentences ‘should be capable of a rational explanation’.[23] However, that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders’.[24] The assessment of the amount of disparity between offenders is ‘[u]ltimately ... an evaluation based on impression’.[25]
A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess.[26] As this Court said in Barbaro v The Queen:
[T]he question for consideration is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co‑offenders in the way he/she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances.[27]
For an appellate court to intervene on the basis of disparity, the disparity must be ‘marked’ or ‘manifest’ and such as to produce a legitimate and justifiable sense of grievance in the objective observer’.[28] The question whether there is such a sense of grievance depends on whether there were reasonable grounds for differentiation (or lack thereof) between the co-offenders.[29] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect’.[30]
[20][2023] VSCA 109, [124]-[126] (Emerton P, Niall and Kaye JJA) (‘Kellway’).
[21]Abdou v The Queen [2015] VSCA 359 [62] (Redlich, Beach JJA and Beale AJA) (‘Abdou’). See also Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) (‘Green’); Nipoe v The Queen [2020] VSCA 137 [38] (Maxwell P, Niall and Emerton JJA) (‘Nipoe’).
[22][2013] VSCA 64 [43] (‘Dawid’).
[23]R v Tien [1998] VSCA 6 [40] (Tadgell JA).
[24]Ah-Kau v The Queen [2018] VSCA 296 [51] (McLeish and T Forrest JJA).
[25]Ibid.
[26]Barbaro v The Queen (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
[27]Ibid 371–2 [63] (Maxwell P, Harper JA and T Forrest AJA).
[28]R v Mercieca [2004] VSCA 170 [17] (Winneke P).
[29]Abdou, [62] (Redlich, Beach JJA and Beale AJA).
[30][2001] HCA 64; (2001) 207 CLR 584, 608 [65] (emphasis in original).
The test as to whether there is a justifiable sense of grievance is an objective one, despite its subjective overtones.[31] Only an unreasonable difference in sentencing outcomes is productive of a grievance that is justifiable. As this Court said in Nipoe:
The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgements required’ to arrive at the sentence imposed. [32] It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced.[33]
[31]Abdullahi v The King [2024] VSCA 156, [54] (Emerton P and McLeish JA).
[32]Green [2011] HCA 49; (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); McCloskey-Sharp v The Queen[2015] VSCA 87 [17] (Osborn JA).
[33]Nipoe, [40].
In this matter, the factor complicating any comparison between sentences imposed on different offenders is the statutory constraint of s 10AC of the Sentencing Act. As the applicant did not then seek to establish a special reason, the minimum non-parole period available to the judge, both in respect of charge 1 and globally was 3 years. Given that the judge rejected Mr John’s argument that a special reason existed in his case, the same constraints operated on the judge’s discretion with respect to his sentence. The mandatory minimum sentences meant that the judge was not at liberty to give full effect to the circumstances relevant to each individual offender in the exercise of his sentencing discretion.
Even so, the judge did observe that although Mr John could not, unlike his co-offenders, rely on youth as a factor in mitigation of his sentence, considerations of parity with those offenders (including the applicant) operated in his favour.[34] The judge was correct to do so. There was a wealth of material relevant to the unique personal circumstances of Mr John. Further, unlike the applicant, he was not a gang member. The applicant relied particularly on his youth and lack of prior convictions. As he conceded, the effect of the applicant’s youth in the sentencing exercise was of less weight because of the seriousness of the offending.
[34]Reasons, [88].
In short, it is clear that to the extent that it was possible to do so within the constraint of s 10AC, the judge did consider the differentiation between the applicant and Mr John. It is not reasonably arguable that the sentence imposed on the applicant infringes the principle of parity.
It follows that leave must be refused with respect to proposed ground 1.
Proposed ground 2 – manifest excess
Applicant’s contentions
The applicant acknowledges that the offending was serious and called for a term of imprisonment. Nonetheless the applicant contends that it was not reasonably open to the judge to impose the sentences he did on charges 1, 3 or 5 having regard to the combination of nine matters. These are the early plea of guilty, the effect of Worboyes, the applicant’s youth, his genuine remorse, the substantial risk of deportation at the expiry of his sentence, strong family support, his excellent progress whilst on supervised bail, his lack of prior convictions and any subsequent offending and his limited role in the offending coupled with its short duration.
The applicant acknowledges that no special reason was advanced on the plea, and a sentence of imprisonment with a non-parole period of at least 3 years had to be imposed on charge 1. It is argued that consequently the judge was ‘forced to do the applicant an injustice by imposing a sentence that would not have otherwise been warranted in this case’.
Further, the orders for cumulation, although moderate, contributed to the manifestly excessive sentence.
Respondent’s contentions
The respondent contends that the offending in this case was exceptionally serious and, in particular, that home invasion is a ‘particularly nasty form of criminal conduct.’[35] The applicant attended three separate homes in company with up to 16 other offenders to intimidate rival gang members by inflicting significant property damage on their family homes. The victims were terrified.
[35]Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, [1] (Maxwell P, Neave JA and Coghlan AJA).
It is submitted that the Reasons make plain that the judge considered and gave appropriate weight to all the factors relied upon in support of this proposed ground, including the applicant’s role in the offending. The respondent argues that the applicant’s role was not minor in the context of the whole of the offending. In the absence of these factors or in the event that the judge had given any of them insufficient weight, a substantially greater sentence would have been imposed.
The orders for cumulation are argued to be moderate. And, given the absence of a special reason that the mandatory minimum non-parole period of three years should not apply with respect to charge 1, in structuring the sentence the judge allowed for the earliest available opportunity for parole.
Analysis
For leave to be granted under proposed ground 2 it must be reasonably arguable that the sentence imposed on the applicant is wholly outside the range in the sound exercise of the judge’s discretion. In this matter it is not.
The offending relevant to charges 1, 3 and 5 was extremely grave. In pursuit of gang vengeance, the applicant joined other (young) men who disguised themselves and brandished bats and machetes at three different residential addresses in the early hours of the morning. Significant property damage was inflicted at the residences. The occupants of the houses were terrified. The applicant’s commitment to the joint venture did not waver over the course of some hours.
The seriousness with which Parliament treats the offence of aggravated home invasion, in particular, is reflected in its maximum penalty and mandatory minimum penalty as well as in the fact that the existence of a special reason to avoid the mandatory minimum penalty is ‘almost impossible to satisfy’.[36] Aggravated burglary, or its attempt, too, are objectively very grave offences.
[36]DPP v Bowen (2021) 65 VR 385; [2021] VSCA 355, [11] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA). See also Buckley v The Queen (2022) 71 VR 218; [2022] VSCA 138 (Maxwell P and T Forrest JA).
The gravity of the applicant’s offending was appropriately reflected in the individual head sentences imposed for charges 1, 3 and 5. In particular the judge did not impose the minimum possible head sentence of three years and six months on charge 1.[37] It is clear, however, that the judge took into account each of the matters relied upon by the applicant in mitigation of his sentence ‘to the extent that it [was] possible’[38] in the structure of the total effective sentence. Some measure of cumulation was called for on charges 3 and 5. The orders in that respect were extremely modest. Further, the judge imposed the least available minimum sentence expressly to ‘provide an opportunity to facilitate [the applicant’s] rehabilitation on supervised release through parole as soon as that is practicable.’[39]
[37]Sentencing Act, s 11(3).
[38]Reasons, [150]. See also [148]-[149].
[39]Reasons, [150].
Leave with respect to proposed ground 2 must be refused.
Proposed ground 3 – fresh evidence
Applicant’s contentions
At the hearing of the application, the applicant sought leave to add proposed ground three. In advance of the hearing the applicant filed an amended written case in which it was contended that in the course of preparing the application his legal representatives ‘developed sufficient concern as to his functioning that [he] was referred to Mr Luke Armstrong, Forensic Psychologist, for assessment.’ Mr Armstrong produced a report and an addendum report dated 20 June 2024 and 8 July 2023 respectively.
The applicant argued that the reports are either fresh or new evidence which should re-open the sentencing discretion. It was submitted that the reports ‘more readily’ fit the description of new evidence, being material not available at the plea that could, with reasonable diligence, have been discovered. In the alternative it was argued that the Court should exercise its discretion to receive the reports in order to avoid a miscarriage of justice.
It is contended that Mr Armstrong makes a number of relevant findings, particularly that the applicant has borderline intellectual functioning and features of dependent personality, which makes him ‘extremely vulnerable’ within an incarcerated setting. If the judge had been aware of these matters, it is argued that they would have had a significant impact upon the sentencing outcome. It would have been open to the judge to find a special reason to not impose a term of imprisonment and the minimum 3-year non-parole period on charge 1 because of substantial and compelling circumstances that are exceptional and rare and that justified doing so.[40]
[40]Sentencing Act, s 10A(2)(e).
The applicant argues that he satisfies the stringency of the s 10A(2)(e) Sentencing Act test because of a combination of his:
(a)Guilty plea;
(b)Age at the time of offending;
(c)Remorse, including post-offence efforts at reformation;
(d)Lack of prior criminal history;
(e)Psychological profile, including borderline intellectual functioning and features of dependent personality disorder;
(f)Resultant ‘extreme vulnerability’ in an adult prison such that he will be subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment’;
(g)Meeting the criteria of Verdins limbs 2, 5 and 6; and
(h)Risk of deportation.
That the applicant ‘only falls short’ in satisfying s 10A(2)(c)(ii) of the Sentencing Act because his conditions do not fall into the legislative definition of ‘impaired mental functioning’ was emphasised in the amended written case. In oral submissions it was argued that irrespective of the s 10A(2)(c)(ii) threshold, the opinions of Mr Armstrong are relevant to the s 10A(2)(e) considerations. Further, the applicant argues that pursuant to s 10A(3)(b) the cumulative impact of the circumstances warrants the departure from the ordinary expectation of parliament that an offender serves a minimum of 3 years in an adult prison.
Respondent’s contentions
The respondent did not oppose the grant of leave to add proposed ground 3 but argued that the ground should not found a grant of leave to appeal against sentence.
The respondent submitted that the opinions of Mr Armstrong in combination with the other factors relied upon by the applicant do not amount to circumstances that are substantial and compelling and exceptional and rare. The matters relied upon are commonplace. The respondent further argued that in any event, there is no realistic prospect that this Court would impose a less severe sentence.[41] Given the gravity of the offending the sentence imposed was merciful.
Analysis
[41]Criminal Procedure Act2009, s 280(1)(a).
The principles relevant to the admissibility of additional evidence on an appeal against sentence were summarised by Redlich JA in Nguyen v The Queen[42] as follows:
[42][2006] VSCA 184 (‘Nguyen’).
[T]his Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[43]
[43]Ibid, [36]-[37] (citations omitted) (Maxwell P and Neave JA agreeing).
It is to be noted that throughout his judgment in Nguyen, Redlich JA used the terms ‘fresh’ and ‘new’ evidence interchangeably and without any apparent distinction. As Priest JA said in Packard (A Pseudonym) v The Queen,[44] Nguyen and other authorities appear to establish that no practical distinction has been drawn between fresh and new evidence for the purposes of appeals against sentence either by this Court or the High Court.[45] Further, in light of Betts, s 280(1)(a) of the Criminal Procedure Act is sufficiently broad to encompass a sentence in which the error at first instance is disclosed subsequently by fresh or new evidence.[46]
[44](2022) 300 A Crim R 55; [2022] VSCA 128 (‘Packard’).
[45]Ibid, [13]. See Betts v The Queen (2016) 258 CLR 420, 425 [10] (French CJ, Kiefel, Bell, Gageler and Gordon JJ) (Betts).
[46]Packard, [14].
The applicant contends that the judge’s ignorance of Mr Armstrong’s opinions, in combination with the other nominated matters, led to an erroneous finding that there was no special reason to enliven the very limited discretion to not impose a sentence of imprisonment and fix a non-parole period of not less than three years pursuant to s 10A(2)(e) of the Sentencing Act.
Section 10A(2)(e) requires a finding that there are substantial and compelling circumstances that are exceptional and rare that justify not imposing a term of imprisonment and the mandatory minimum. ‘Substantial and compelling’ means ‘weighty and forceful or powerful’[47] The phrase ‘exceptional and rare’ refers to ‘circumstances that are wholly outside the ordinary factors typical of the relevant offence’.[48]
Applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof. 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’.[49]
[47]DPP v Lombardo [2022] VSCA 204, [66] (McLeish, Niall and Kennedy JJA) (‘Lombardo’).
[48]Lombardo, [71].
[49]Lombardo, [72].
Sections 10A(2B) and 10A(3) further constrain the manner in which a sentencing judge must approach the s 10A(2)(e) evaluative judgment. General deterrence and denunciation must be regarded as more important than other sentencing purposes in s 5(1) of the Sentencing Act.[50] The offender’s personal circumstances must be given less weight than the nature and gravity of the offence.[51] The judge must not have regard to the offender’s previous good character (other than the absence of previous convictions), an early plea of guilty, prospects of rehabilitation and parity with other sentences.[52] The judge must have regard to, relevantly, Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than three years should ordinarily be fixed.[53] The judge must also have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a custodial sentence and minimum non-parole period.[54]
[50]Sentencing Act, s 10A(2B)(a).
[51]Sentencing Act, s 10A(2B)(b).
[52]Sentencing Act, s 10A(2B)(c).
[53]Sentencing Act, s 10A(3)(ad).
[54]Sentencing Act, s 10A(3)(b).
The question on this application is not whether the new evidence (in combination with the other matters) satisfies the stringent test in s 10A(2)(e), but whether it is reasonably arguable that it does so. On balance I am persuaded that it does.
The gravity of the offending is undisputable and many of the subjective factors relied upon by the applicant are not individually exceptional or rare. That said, those factors, in combination with Mr Armstrong’s (currently unchallenged) evidence of the applicant’s psychological deficits and his resultant ‘extreme’ vulnerability in an adult prison, are reasonably arguable to amount to substantial and compelling circumstances that are exceptional and rare and that justify a sentence other than one of imprisonment with a minimum three year non-parole period. The constraints in ss 10A(2B) and 10A(3) do not render the proposition that the new evidence (in combination with the other factors) could satisfy s 10A(2)(e) less than reasonably arguable.
It follows that leave should be granted with respect to proposed ground 3.
Conclusion
Leave to appeal will be granted with respect to ground 3.
---
2
28
0