Yang v The Queen
[2011] VSCA 161
•7 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Nos 864 of 2009 and 214 of 2010
| TONG YANG |
| v |
| THE QUEEN |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONG YANG |
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| JUDGES | NEAVE JA, KING and LASRY AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 May 2011 |
| DATE OF JUDGMENT | 7 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 161 |
| JUDGMENT APPEALED FROM | R v Yang (Unreported, County Court of Victoria, Judge Chettle, 9 October 2009) |
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CRIMINAL – Director’s appeal – Crimes Act 1958, s 567A(1A) – Respondent pleaded guilty to intentionally causing serious injury – Breach of undertaking to give evidence against co-offenders – Appeal allowed – Respondent re-sentenced – Director of Public Prosecutions v Mann [2006] VSCA 228, applied.
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| Appearances: | Counsel | Solicitors |
| For the Director/Respondent | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant/Respondent | Mr C B Boyce | Slades & Parsons Solicitors |
NEAVE JA
KING AJA
LASRY AJA:
On 9 October 2009, Tong Yang (‘Yang’) was sentenced to 6 years and 6 months’ imprisonment after pleading guilty to one count of intentionally causing serious injury. The learned sentencing judge directed that he serve a non-parole period of 4 years and 4 months.
The Director now appeals against the sentence on the basis that:
The sentence imposed was of lesser severity because of an undertaking given by the Respondent to assist after sentencing law enforcement authorities in the investigation and prosecution of an offence, and the Respondent has failed to fulfil the undertaking.
Yang originally sought leave to appeal against his sentence[1] on the basis that:
1.The learned sentencing judge erred in sentencing the applicant as a serious violent offender pursuant to Part 2A of the Sentencing Act 1991.
2.The sentence is manifestly excessive.
[1]Redlich JA, who heard Tong Yang’s application for leave to appeal, held that it would be pointless to hear it at that time, because of the Crown appeal and adjourned it to be heard at the same time.
His counsel now concedes that Yang must be re-sentenced because of the breach of undertaking. As we explain below, we have taken account of the submissions made in support of Yang’s application for leave to appeal where relevant to his re-sentencing.
Background
Yang shared a house with Katie Pierce. The Pierce family was feuding with the Sales family. The Crown case against Yang was that, some time before he committed the offence, he agreed with Katie and Wendy Pierce (Katie’s mother) to assault Robert Sales, in a manner that would leave him scarred, for a fee of $200.
On 28 March 2009, Yang met Wendy Pierce near the Clare Castle Hotel in Port Melbourne and was told that the man she wanted him to bash was in the bar of the hotel. He had grey hair and was wearing a T-shirt. Yang went into the bar with Andrea Fuzzard, who had accompanied Wendy and who pointed out the prospective victim. After surveying the scene, Yang re-entered the hotel, pulled out a meat cleaver concealed under his clothes and struck Mr Mark Lohse on the face. Yang had confused Mr Sales with Mr Lohse, who had been having a beer and a bet at the hotel.
Yang then fled, throwing the meat cleaver into the Yarra river. The victim was taken to hospital where he required plastic surgery involving 44 sutures on the outside of his face and many more inside his mouth. His injuries were described by the judge as follows:
He found himself spitting teeth and bleeding. He sustained three fractures to his left cheekbone and a displaced fracture to his jaw. He suffered a laceration that ran from the area of his left ear to under his mouth. He had multiple stitches and suffers nerve damage as a result of [the] attack. He has blurred vision in his left eye and there is a possibility of permanent blindness or eyesight damage in the future.[2]
[2]R v Yang (Unreported, County Court of Victoria, Judge Chettle, 9 October 2009) (‘Reasons’), [3].
Yang was identified from a CCTV recording of the attack by police who knew him because of his previous involvement in drug related activities. He was arrested on 6 April 2009 and gave a ‘no comment’ interview, before making two statements as to his involvement in the offending. In those statements, he outlined the agreement he had reached with Mrs Pierce and her daughter to conduct the attack and said he had only received $100 because he had attacked the wrong victim. As the Director’s appeal indicates, he also entered into an undertaking to give evidence against Mrs Pierce and her daughter.
The applicant was 23 years old at the date of offending and 25 at the date of sentence.[3] He admitted 34 prior findings of guilt from 11 court appearances.[4] Most of these were for drug-related offences, though some findings were made in relation to theft and ‘street crimes’. He came before the Children’s Court on a charge of reckless conduct endangering life in November 2002. He was also convicted on 1 June 2007 of serious assault and assaulting a police officer in the Magistrates’ Court in Cairns and received a wholly suspended term of imprisonment. The sentencing judge did not have access to details of the Queensland offending.
[3]Cf ibid [12].
[4]Ten of these resulted in convictions.
Yang was born in Laos and came to Australia with his father when he was about 5 years old. He had an abusive upbringing and ran away from home to live on the street. His schooling was disrupted and he left sometime after year 9. At the age of 12, he began smoking cannabis and soon afterwards began abusing heroin, benzodiazepine and other drugs.
A report prepared by Mr Patrick Newton, a forensic psychologist, was tendered at the plea hearing on Yang’s behalf. Mr Newton said that:
1)Mr Yang’s use of heroin and cannabis has been sufficiently severe to warrant the formal diagnosis of ‘Poly-Substance Dependence, With Physiological Dependence’. This diagnosis encapsulates my opinion that his misuse of these substances has reached the proportions of a severe disorder that has wrought pervasive disturbance across all major areas of his life.
…
3)Mr Yang is currently suffering residual symptoms of depression which cause him ongoing distress. He is being treated with antidepressant medication and has found this to be of assistance.
4)Mr Yang’s reported symptoms are sufficiently severe to warrant the diagnosis of a ‘Recurrent Major Depressive Disorder in Partial Remission’. There is an unequivocal need for ongoing professional assistance.
5)Mr Yang was distractible and he had some difficulty remaining focused during his interview. He reported ongoing difficulties with concentration and attention. Brief evaluation suggested that he is of below‑average intelligence and his capacity for logical reasoning is poor. Mr Yang’s English literacy remains remedial.
6)Notwithstanding his reported history of hallucinations when intoxicated with various substances, Mr Yang was not evidencing any symptoms of psychosis or thought disorder when I evaluated him. His reality testing and moral reasoning are both intact.
His Honour’s reasons
In his sentencing reasons, the judge referred to the utilitarian value of Yang’s early guilty plea and accepted that he ‘had expressed genuine remorse for [his] conduct and some empathy for the condition of [the victim]’.[5] His Honour said that, in these circumstances, Yang was entitled to a ‘substantial reduction’ for his guilty plea.
[5]Reasons, [14].
The judge noted that the reduction in sentence to encourage offenders to assist police could be from one-third to more than 50 per cent of the sentence that would otherwise have been imposed. He said that the information which Yang offered to provide the authorities was not limited in value and that Yang’s offer to provide it had exposed him to risk in custody and after being released. His Honour also found that, in all probability, Yang would have to serve his entire sentence in protective custody.
His Honour then said that:
In my view, it is appropriate that I approach the task of sentencing you by first determining by way of intuitive synthesis, the appropriate sentence for your offending. I must then, by virtue of s 6AAA of the Sentencing Act, reduce and state the effect of the reduction in sentence I give you simply to reflect your plea of guilty. However, having allowed for the relevant factors I have outlined, together with your plea of guilty, it is appropriate, in my view, having regard to all the circumstances in this case, to grant you a further discount of approximately 45 per cent of the sentence I would otherwise impose.[6]
[6]As a matter of logic, the order of the application of the discounts does not result in a different sentence, provided that the discounts remain the same whatever the order in which they are applied.
Later in his reasons he said that:
Pursuant to s 6AAA of the Sentencing Act I indicate that but for your plea of guilty, and obviously assuming therefore that you would not have given the undertaking to assist the prosecution in the future, I would have imposed a term of imprisonment of 14 years with a non parole period of 10 years.[7]
[7]Reasons, [16], [19].
His Honour described the offence as extremely serious and said that it was necessary to give full effect to denunciation and general deterrence.
The Crown appeal
Under s 567A(1A) of the Crimes Act 1958, where a sentence imposed on an offender is less severe because of an undertaking given by that offender to assist law enforcement authorities, and the Director of Public Prosecutions considers that the offender has failed wholly or partly to fulfil the undertaking, the Director can appeal against the sentence passed. If this Court considers that the offender has failed wholly or partly to fulfil the undertaking, it may quash the sentence passed and re-sentence the offender as it thinks fit.[8]
[8]Section 567(4A), see now Criminal Procedure Act 2009, s 291.
On 10 November 2009, 7 and 8 April 2010, Yang was called to give evidence at the committal hearing of his co-offenders at the Magistrates’ Court. He attended but failed to adopt the contents of his statements as true and to give evidence in accordance with his undertaking. As a result of that failure, the co-accused were acquitted. The Crown now seeks the quashing of the sentence below and Yang’s re-sentencing pursuant to s 567A(4A) of the Crimes Act 1958.
Yang filed with the Court an affidavit sworn on 3 May 2011 in which he deposed that Ms Pearce’s boyfriend, Wayne Everoll, was being held in the same unit of the prison that he was held in (Unit J2 of the Fulham Correctional Centre) at the time that he was required to give evidence. Although he had not been directly threatened by Mr Everoll, another prisoner had told him that Mr Everoll asked permission from someone else to assault him but this was declined. He had been moved to another protection unit of the prison in February 2010 but had been subjected to threats in that unit. It was known to other prisoners that he had been a Crown witness and, as a result of this, he had been constantly threatened and harassed. Yang said that he did not feel safe in the environment that he was in and would be at particular risk following his release from custody. He said that:
As a result of having made my original statements to the police, I spent most of my time in my cell. I did not feel safe going into the communal areas of my unit (the gym and the yard) on my own. I only spoke to a couple of inmates who said that they would protect me while they were in the same unit as me. I would only leave my cell when they were in the yard and the gym with me. Once they have completed their sentences I will remain in my cell more often.
Since declining to give evidence in accordance with my undertaking, I now leave my cell on occasions on my own, however I only do so to attend the gym to train when it is empty to ensure that I can avoid any conflicts.[9]
[9]Affidavit of Tong Yang sworn 3 May 2011, 6-7.
Counsel’s submissions
Counsel for Yang conceded that he must be re-sentenced. However, it was submitted that his Honour’s starting point of 14 years’ imprisonment (without the guilty plea and the informer’s discount) was too high and that this should be taken into account in re-sentencing the respondent.
The judge had first arrived at a sentence through the process of instinctive synthesis, which took account of the fact that Yang had pleaded guilty and then discounted that sentence to take account of the undertaking to assist the authorities. In his Honour’s s 6AAA declaration, he excluded not only the discount given for Yang’s guilty plea, but also the discount for his undertaking, and said that, if these factors had not been present, he would have sentenced Yang to 14 years’ imprisonment with a non-parole period of 10 years.
Working backwards from the 14 year term of imprisonment which his Honour said he would have been imposed, and deducting from it the 45 per cent informer’s discount, Yang would have received a sentence of about 15 per cent more if he had not pleaded guilty.[10] A deduction of 15 per cent for the guilty plea did not adequately reflect the utilitarian value of the plea or the fact that Yang was genuinely remorseful.
[10]Deducting the 45 per cent informer’s discount from 14 years leaves 7 years and 8 months. That figure is approximately 15 per cent higher than the 6 year and 6 month sentence his Honour imposed.
Counsel relied on Sentencing Advisory Council statistics showing that, between 2004-5 and 2008-9, the median sentence imposed for the offence of causing serious injury intentionally was 3 years and 6 months’ imprisonment.[11] He submitted that the highest sentence imposed for this offence was in Ali v The Queen,[12] where this Court upheld a sentence of 15 years’ imprisonment, with a non-parole period of 12 years’ imprisonment, imposed on an offender who was convicted by a jury of a serious prison assault, which left the victim with devastating brain injuries.[13] Counsel also referred to R v Ly,[14] in which sentences of 4 and 5 years’ imprisonment, respectively, were imposed on offenders who pleaded guilty to intentionally causing serious injury to a stranger, whom they attacked with a machete in the course of an affray. In Kane v The Queen,[15] the appellant, who pleaded guilty, bit off a large part of the victim’s nose, leaving him with permanent facial deformity. The Crown conceded that the sentence of 8 years’ imprisonment imposed for that offence was manifestly excessive and the Court re-sentenced the appellant to 6 years’ imprisonment.
[11]Sentencing Advisory Council, Sentencing Snapshot No 93: Causing Serious Injury Intentionally in the Higher Courts of Victoria 2004-05 to 2008-09 (March 2010).
[12][2010] VSCA 182.
[13]Reference was also made to the following cases: DPP v Ross [2006] VSCA 223 (offender struck the victim (his de facto partner’s new boyfriend) twice on the head with a torch, fracturing his skull and causing a permanent loss of sensation in his hand, re-sentenced to 2 years and 6 months’ imprisonment, respondent was remorseful, pleaded guilty and was considered to have good prospects of rehabilitation); Ashe v The Queen [2010] VSCA 119 (count of recklessly causing serious injury for sustained attack on victim, guilty plea, total effective sentence of 10 years’ imprisonment not manifestly excessive, no reasons given for 8 year non-parole period, re-sentenced to 7 year non-parole period); Guden v The Queen [2010] VSCA 196 (20 year old offender pleaded guilty to two counts of intentionally causing serious injury, spontaneous machete attack, sentences of 4 years (18 months of which were to be served cumulatively) and 6 years not manifestly excessive); Harvey v The Queen [2007] VSCA 127 (two counts of intentionally causing serious injury, guilty plea, sentences of 6 and 9 years’ imprisonment imposed, home invasion involving attack on two victims with an axe, 9 year sentence held to be manifestly excessive, re-sentenced to 6 and a half years’ imprisonment on each count); Pennell v The Queen [2007] VSCA 225 (each appellant re-sentenced to 6 years for count of intentionally causing serious injury, guilty pleas, extended period of offending by group of four co-offenders involving electrocution and use of tree branches, double-sided axe and glass bottle, sentences imposed lenient on account of youth of offenders and absence of prior convictions for violent offences); R v Sa [2004] VSCA 182 (sentence of 3 years and 6 months’ imprisonment imposed on count of intentionally causing serious injury not manifestly excessive, guilty plea, machete attack in presence of two young children).
[14][2004] VSCA 45. Ly acted in concert with a co-offender, Tat.
[15][2010] VSCA 213.
It was submitted that, in re-sentencing Yang, the Court should give considerable weight to the mitigating factors to which the sentencing judge referred, including the offender’s guilty plea, his remorse, his deprived childhood, his depressive disorder and his early drug addiction. Yang had resiled from his undertaking because he was frightened of being attacked and had indicated that he wished to remain in protection. For these reasons and because his Honour had failed to give sufficient weight to Yang’s plea of guilty, he should not be subjected to a significantly longer term of imprisonment.
Counsel for the Crown submitted that Yang’s failure to fulfil the undertaking required a significant increase in his sentence. The notional starting point of 14 years’ imprisonment was not outside the range of sentences which could have been imposed if the offender had not pleaded guilty and had not received an informer’s discount. Reliance was placed on Director of Public Prosecutions v Terrick,[16] in which this Court re-sentenced two offenders, who had pleaded guilty to one count each of intentionally causing serious injury, to 11 years and 6 months’ imprisonment for that count.
[16](2009) 24 VR 457. The offenders were indigenous men, from severely disadvantaged backgrounds. While they were intoxicated they savagely assaulted a stranger by kicking and beating him. The victim was left with catastrophic brain injuries.
The Crown submitted that this was a very serious example of an offence carrying a maximum penalty of 20 years’ imprisonment. Yang attacked the victim with a meat cleaver for financial gain. The injuries suffered by the victim were appalling. Not surprisingly, the victim suffered significant physiological trauma and will bear the scars of the attack for the rest of his life. None of the cases on which counsel for Yang relied involved an offender who inflicted a serious injury in return for payment. Yang had a lengthy criminal history, including two offences involving violence and his prospects of rehabilitation were guarded despite the fact that he had made some progress while in custody.[17]
[17]The judge said that Yang had had negative drug screens while in custody and that his prospects of rehabilitation depended on him ceasing to use illegal drugs.
Conclusion
In Director of Public Prosecutions v Mann,[18] Warren CJ said that the following principles applied in re-sentencing a person who had failed to comply with an undertaking:
(1) A more severe sentence will be imposed once the conditions of breach of undertaking, appeal and determination of a different sentence are established, unless exceptional circumstances arise.
(2) In re-sentencing a respondent, the constraints of the principles of double jeopardy do not arise.
(3) The sentence cannot exceed that which the judge at first instance specified would have been imposed but for the undertaking.
(4) Threats made in prison do not alter the fact that a respondent has failed to pay the price of the reduced sentence given at first instance.[19]
[18][2006] VSCA 228.
[19]Ibid [8].
As we have said, the trial judge reduced the sentence imposed on the respondent by approximately 45 per cent, because of his undertaking to assist the authorities. Public policy requires an offender who does not fulfil an undertaking to receive a significant increase in his or her sentence. The circumstances on which Yang relies to justify that failure are not exceptional. The 45 per cent reduction in his sentence took account of the fact that he had ‘exposed [himself] to risk both in custody and ultimately upon … release’.
In Mann, the threats on which the offender relied to explain his breach of undertaking included threats to his eight year old daughter made by another prisoner who knew the school his daughter attended. Nevertheless, this Court increased his total effective sentence and non-parole period. Warren CJ said that:
When an individual agrees to the bargain with the community based on co-operation, he or she embraces risks at large, save in an exceptional case where the fulfilment of the risk may not have been reasonably anticipated. Here, the respondent took the risk, as clearly articulated by the sentencing judge, and it eventuated. Such fulfilment is not a matter of mitigation at all. It simply puts the individual back where he would have been if the undertaking had not been proffered in the first place.[20]
[20]Ibid [10] (Warren CJ).
Counsel for Yang contended that the judge’s statement that he would have imposed a sentence of 14 years’ imprisonment, but for the offender’s guilty plea and undertaking, showed that he had given an insufficient discount for the plea of guilty. There are difficulties with that argument. In Scerri v The Queen,[21] this Court criticised mathematical comparisons of this kind because they are inconsistent with the instinctive synthesis process of sentencing. In their joint reasons, Maxwell P and Buchanan JA said:
[21][2010] VSCA 287; see also Rizzo v The Queen [2011] VSCA 146.
Sentencing judges are required to synthesise a large number of factors in order to arrive at an appropriate sentence. A plea of guilty is one of those factors. Judges are not permitted to take a starting-point and then add or subtract periods of time representing aggravating or mitigating circumstances (as the case may be). Accordingly, it is not to be supposed that in arriving at the sentence the subject of this appeal his Honour deducted a specific period for the plea of guilty. There is, as a result, an inherent artificiality in the requirement which s 6AAA imposes on sentencing judges, to revisit sentences which are the product of an instinctive synthesis and state the sentences that would have been imposed absent one factor, the plea of guilty.
What matters for present purposes is that the ‘discount’ – that is, the difference between the notional sentence and the actual sentence – is not examinable for specific error. As this Court said in Burke:[22]
‘A complaint about the sentence discount ... identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.’
In other words, a complaint about the discount for the plea of guilty can only ever be a particular of a ground contending that the sentence was manifestly excessive, that is, outside the range reasonably open to the sentencing judge in the circumstances of the case.[23]
[22](2009) 21 VR 471, 477.
[23][2010] VSCA 287, [23]-[25].
That criticism has even greater relevance in this case, where the s 6AAA statement combined both the discount for giving an undertaking and the discount for the guilty plea.
The cases cited by counsel for Yang in support of the claim that the original sentence was too high also provide limited assistance in deciding how he should be re-sentenced. As this Court has frequently said, the sentences imposed in particular cases have no precedential value.[24] Although consistency in sentencing is important, care must be taken in comparing the sentences imposed in other cases because of the myriad factors which must be taken into account in sentencing an individual offender. Whilst it is true that the injuries inflicted in this case were not as severe as those suffered by the victims in some of the other cases relied upon by counsel for Yang, none of the cases relied upon involved the infliction of serious injury in return for payment.
[24]See, for eg, Kane v The Queen [2010] VSCA 213, [25] (Nettle JA).
Nevertheless, having regard to the 45 per cent discount which his Honour said he was giving for the undertaking, we consider that the sentence which he would have imposed but for that undertaking was too high. Although the offence was a very serious one, Yang pleaded guilty. The plea had utilitarian value and the judge found that he was remorseful. The fact that he breached his undertaking does not detract from that remorse.
Sections 6D and 6E of the Sentencing Act 1991 do not apply in re-sentencing Yang because he is not a serious violent offender.[25] If he were to commit another relevant offence in the future, he would fall to be sentenced as a serious violent offender, and considerations of community protection would be treated as the principal purpose for which the sentence is to be imposed.
[25]If it had been necessary to consider Yang’s application for leave to appeal against sentence, we would have held that the ground of appeal complaining that he was sentenced as a serious violent offender was not made out.
Having regard to all of the matters mentioned above, including the applicant’s early guilty plea and his breach of undertaking, we re-sentence him to a term of imprisonment of 8 years and 6 months and order that he serve a minimum period of 6 years before he is eligible for parole.
Assuming that, in a case such as this, it is necessary to indicate the sentence which would have been imposed if Yang had not pleaded guilty, we declare pursuant to s 6AAA of the Sentencing Act 1991 that we would have re-sentenced him to 11 years’ imprisonment and directed that he serve a non-parole period of 7 years and 9 months.
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