Court of Appeal (Vic)|2012-08-31|Before: Neave JA, Weinberg JA

Chol v The Queen [2012] VSCA 204 (31 August 2012)

DPP v Ring Chol (Unreported, County Court of Victoria, Judge Tinney, 27 April 2012)

1 The applicant, Ring Chol, seeks leave to appeal against the sentences imposed on him following his guilty plea in the County Court to two charges of armed robbery (charges 1 and 12), six charges of robbery (charges 2, 4, 5, 6, 13 and 14), two charges of recklessly causing serious injury (charges 3 and 15), four charges of criminal damage (charges 8 to 11) and one charge of attempted robbery (charge 7). Prior to the hearing, the parties were informed that if leave were granted, the appeal would be heard at the same time.

2 The offending conduct, which occurred in and around St Albans between June and July 2011, involved 11 separate incidents affecting 13 victims. All the offences were committed by the applicant in company with other younger males.[1] At the time of the offending, the applicant was 18 years old.

3 Following a plea in mitigation, the applicant was sentenced to a total effective sentence of five years and 10 months' imprisonment, with a non-parole period of three years and four months.

4 The circumstances of the offending, relevant maximum penalties, individual sentences imposed and orders for cumulation are as follows:

Victim (Rahul Sharma) confronted by group of males when taking out rubbish. He was grabbed and fell to the ground.

Victim punched and kicked numerous times to face, head, upper body, back and chest while on ground. A bottle was smashed over his head. Victim observed males laughing.

Victim (Nitin Puri) was hit to back of head while walking down street, fell to ground and then punched to the head two or three times while on the ground.

He chased after the man who took his phone, and was punched in the face.

Victim (Sean Fry) was walking out of train station when offenders ran at him, punched him to the head several times, and hit him in the face with a 40 cm piece of wood. One offender was holding a knife.

Victim suffered laceration to the left forehead and an open wound to the upper lip requiring suturing, an abrasion to his left hand, and tenderness to the shoulder.

Victim (Munish Gaur) was walking down street when he was grabbed, punched twice in the mouth.

Victim (Alan Robinson) was walking out of train station when offender put his arm around victim's neck and other males punched his face approximately 10 times.

The offenders searched victim's pockets and backpack, taking his mobile phone, iPod and $10.

Victim thrown to ground and kicked three times to the head. He suffered bruising and cuts to the face.

Victim (Dinayadura De Silva) was walking out of train station when approached by 4 males. One demanded his mobile phone, which he handed over, while another pretended to have a weapon concealed in his jacket.

Victim's wallet was taken, but his mobile phone was given back to him.

Victim (Amrit Pal Singh) was sitting in his maxi cab when 5 males approached him armed with large rocks. They demanded his mobile phone and his 'stuff'.

Victim sounded the horn to alert others. Offenders broke window and damaged the cab with rocks, while laughing.

The males damaged three cars parked outside the victim's (Navdeep Kumar) house with rocks. The applicant also smashed victim's front bedroom window with about 5 rocks.

The victim had been walking along a platform at a train station, when he was approached by 4 males, one of whom attempted to grab his iPhone. Victim ran to his home and the males chased him and then criminally damaged the property described above.

Victim (Damith Nalaka) was followed by 4 males as he got off a train, one of whom produced a large knife. One male took the victim's bag and wallet, removed his mobile phone from his pocket, and took $150 from his wallet.

The victim attempted to escape, and was followed by males, who were joined by other males. The group surrounded the victim. Victim was hit and his left hand was sliced with the knife. The applicant hit the victim causing him to fall to the ground.

Victim suffered bruising to his chest and cuts to his hand.

Victim (Subramaniam Manisekaran) stopped by 3 males as he walked down street, who searched his pockets. 4 additional males then joined the group.

When victim attempted to call for help, he was strangled. Victim fell to ground, and was hit and kicked to the chest, ribs and abdomen while on ground.

Applicant searched victim's pockets and took $160, backpack, two mobile phones, a silver cigarette case and a pair of headphones from victim.

Victim suffered laceration to his head, pain in neck and left of face, swelling and bruising to his head, abdominal pain and bruising to his back.

Victim (Yashkaran Singh Thind) was surrounded by group of males as he got off train. Victim pleaded to be left alone.

Victim punched to face numerous times, fell to the ground and punched and kicked in face, head and ribs.

Victim's neck was grabbed and squeezed, causing him to pass out.

Victim suffered various grazes, bruising, superficial laceration on nasal bridge and a fractured nose.

5 His Honour declared pursuant to s 6AAA of the Sentencing Act 1991 that, but for his plea of guilty, the applicant would have been sentenced to a total effective sentence of nine years' imprisonment, with a non-parole period of six and a half years.

6 The learned sentencing judge described the applicant's conduct (and that of his co-offenders) as violent, unforgiving, brazen and frightening.[2] His Honour noted that many of the offences involved physical attacks (which on two occasions, caused serious injury to the victim),[3] and that on more than one occasion, the offenders had laughed at the victim.[4] The victim of charges 14 and 15 offered the offenders his phone, wallet and bag and begged them not to attack him because he would die, but was punched repeatedly until he fell to the ground and was then kicked and punched to the face, head and ribs until he lost consciousness.[5] The judge noted that:

Your offences were committed upon vulnerable people in public places. People were targeted because they were alone and outnumbered and greatly so. These were cowardly and often brutal group or joint attacks and often with what I judge to be a level of gratuitous violence employed.[6]

7 His Honour said that this kind of offending required significant emphasis on denunciation of the offending conduct and on general deterrence, to make it clear that '[u]nprovoked public violence will simply no longer be tolerated by the courts.'[7] He noted that there must have been some level of planning for the group attacks in which the applicant was involved.[8]

8 The judge considered the Crown's submission that an appropriate sentencing range was a head sentence of four to six years, with a non-parole period of two to three years,[9] but rejected the view that such a range was adequate, commenting that:

The notion that such a spree of violent offending might be punished with a head sentence of four years and a non-parole period of two years is in my judgment unthinkable in the sound exercise of a [sentencing] discretion.[10]

9 He accepted the Crown submission that a youth justice centre order was not appropriate, because 'a three year term would be entirely inadequate, given the nature and gravity of the offending and the need for some level of cumulation to recognise the differing acts and different victims'.[11]

10 As mitigating factors, the sentencing judge took into account the applicant's early guilty plea,[12] his cooperation with police (particularly, his admissions to police regarding the damage covered by charges 9, 10 and 11),[13] and his lack of prior convictions.[14] Although his Honour expressed 'some reservations' about the applicant's remorse, given the 'gratuitous nature of some of the violence associated with these offences and the nature of this offending', he ultimately accepted that the applicant had some level of remorse for his offending.[15]

11 The judge accepted that the applicant was not personally armed with a weapon during the offending. However, he said that the applicant's individual role 'becomes far less important, given the very close team dynamics at play here and the impact of this team activity'.[16]

12 His Honour made detailed reference to the applicant's youth and to the interest of the community in facilitating the applicant's rehabilitation. However, he said that although he had paid 'anxious regard' to these matters:

The nature and the gravity of your offending requires that the sentencing objectives or purposes of deterrence, both specific and general, denunciation, just punishment and protection of the community, be given real weight in the sentencing mix. It necessarily follows that the weight to be attached to youth is to be correspondingly reduced. It is never eliminated though, as a sentencing consideration or certainly not in this case. That is because it is only in circumstances of the gravest criminal offending, and where there is a judgment that there is no realistic prospect of rehabilitation, that the mitigatory impact of youth is to be viewed as all but extinguished, and that is certainly not the position I find myself in, in this case.

So here, your youth is still a very significant consideration, and one that I take into account in mitigation by moderating individual sentences, by moderating orders for cumulation and in reaching the non-parole period that I will shortly pronounce. Your youth remains a relevant mitigating circumstance that demands some degree of leniency. That simply would not be extended to a person of more mature years, but given the nature of this offending and the prevalence of this style of offending generally and amongst young people [more] specifically, general deterrence is still a significant purpose of sentencing in this case. So too, specific deterrence, so too the need to protect the community from you.[17]

13 The judge said that the applicant grew up 'routinely witnessing violence' in Sudan, and had fled to Egypt with his family at the age of 11, where he was exposed to racially-motivated physical violence.[18] He was diagnosed with post-traumatic stress disorder, which the judge took into account in reduction of his culpability.[19] His Honour also accepted that the applicant's condition would cause imprisonment to be more burdensome on him, and that there was a serious risk of there being a significant adverse affect on his mental health.[20] Although his Honour was prepared to moderate the principles of specific and general deterrence 'to a small degree' due to the applicant's condition, he said that:

Your condition in no way clouded [your] knowledge of the wrongfulness of your activity. You knew exactly what you were doing and you knew exactly how serious it was. The connection that I draw is limited to the extent to which you had some vulnerability to negative influence as a consequence of your condition. Nor is there anything in your condition that makes you an inappropriate vehicle for general deterrence or which renders it unlikely that specific deterrence would operate effectively upon you.[21]

14 Because the second proposed ground of appeal alleges a specific sentencing error, we discuss that ground before turning to proposed ground 1. Proposed ground 2 alleges that:

When considering the applicant's criminal conduct, the learned sentencing judge erred in:

(i) finding that the offending was prevalent generally and amongst young people specifically; and

(ii) failing to afford the applicant procedural fairness through giving him an opportunity to correct or contradict the finding of prevalence.

15 In his reasons, the learned sentencing judge said that:

Your youth remains a relevant mitigating circumstance that demands some degree of leniency. That simply would not be extended to a person of more mature years, but given the nature of this offending and the prevalence of this style of offending generally and amongst young people more specifically, general deterrence is still a significant purpose of sentencing in this case.[22]

16 Later in his reasons, his Honour commented that '[h]ardly a day goes by in this city where a soft-target robbery or armed robbery is not committed.'[23]

17 Counsel for the applicant contends that his Honour's comments relating to prevalence were intertwined with the weight to be attached to R v Mills,[24] which deals with the significance of an offender's youth in sentencing him or her. There was no evidence to support the findings as to prevalence made by the sentencing judge. Further, counsel for the applicant was not given any opportunity to respond to them. As a consequence, the judge had given insufficient weight to the applicant's youth and impaired mental functioning, when balancing these factors against general and specific deterrence and denunciation of the offending.

18 The applicant relies on Azzopardi v The Queen,[25] in which Redlich JA said that:

Where the prevalence of a crime amongst a particular group is established on proper material before the court, there may be circumstances in which that fact requires that deterrence receive particular emphasis, with a corresponding reduction in the emphasis to be given to a mitigating circumstance. The offences of culpable driving and white collar crime illustrate such an approach where the good character of the offender will not be given the same mitigatory effect because of the prevalence of that characteristic amongst those committing such offences.

Senior counsel for the Crown with his customary fairness conceded during oral argument that there was no evidence to establish that such crimes [armed robbery, common law assault, causing serious injury recklessly and intentionally] are more prevalent amongst young offenders and that it should not be assumed that crimes of violence in public places are predominantly committed by youthful offenders, or that youthful offenders as an age group will represent a high proportion of those who commit acts of violence in such places.[26]

19 In response, the Crown contends that his Honour's comments were both unexceptional and justified. It was not inappropriate for his Honour to take the view that these types of offences are frequently committed by young people. In its written submission, the Crown submitted that the Court of Appeal has commented on many occasions about the frequency of offending by young men. It relied on Winch v The Queen,[27] where this Court noted that the perpetrators of reckless infliction of serious injury by 'glassing' were often young men and that the fact that the County Court had been called upon to sentence for this offence on 16 occasions over the past three years 'was testimony to the prevalence of this kind of offending'.[28] The Crown also relied on the Sentencing Snapshots on robberies and reckless infliction of serious injury published by the Sentencing Advisory Council, which show that young men are the largest categories of persons sentenced for armed robbery and recklessly causing serious injury.[29]

20 The Crown contends that even if his Honour had sought submissions on the prevalence of this type of offending by young men, the Crown would have been able to rely on the above statistics to illustrate the correctness of his Honour's statement. It follows that this was one of those rare cases in which the breach of procedural fairness could not possibly have produced a different result. Further, even if specific error were reasonably arguable, the appeal should be dismissed because no different sentence would have been passed.

21 For the reasons explained below, we would grant leave to appeal on the basis of proposed ground 2, but would dismiss the appeal.

22 The authorities indicate that judges should exercise caution when relying on the prevalence of an offence to determine the weight to be given to general deterrence and denunciation.

23 In R v Downie and Dandy,[30] Callaway JA said that:

prevalence would have to be established from the materials to which resort may properly be had on a plea to establish sentencing facts. They are not restricted to admissible evidence and matters of which judicial notice may be taken, but sentencing facts as such, and especially the circumstances of the offence, are rarely established by the personal knowledge of the sentencing judge or the collective knowledge of the court of which he or she is a member. As to the second issue, prevalence would have to be established beyond reasonable doubt.[31]

24 His Honour then referred to comments made by Winneke P in R v Li[32] that:

[I]t is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise... Procedural fairness requires no less.[33]

25 After quoting this passage, Callaway JA said in clarification that:

The words I have italicised are there to remind us that a judge does not have to invite submissions about such matters as the prevalence of armed robbery or the need for general deterrence in relation to drug trafficking. Even local prevalence, and the prevalence relevant to sentencing is often local, may be a matter of notoriety: for example, drunkenness in a country town or vandalism in a particular neighbourhood. In all such cases the applicant or his or her counsel should know without being told that there is an adverse factor that is likely to be taken into account.[34]

26 In that case, it was held that the judge was not required to invite submissions as to the prevalence of armed robbery, because this was a matter of notoriety.[35]

27 The prevalence of the offences of armed robbery, robbery and recklessly causing serious injury committed by young men is not necessarily a matter of notoriety. As the authorities stand, it is reasonably arguable that the judge should have sought a submission from the applicant's counsel about whether the prevalence of this type of offending was a relevant sentencing factor, before making the remarks which he did.

28 Nevertheless, this ground of appeal fails. Between 2006−2007 and 2010−2011, 876 males were sentenced in the higher courts for armed robbery.[36] Of these, 614 (approximately 70% of the total) were aged 18 to 29 years and 426 (approximately 49% of the total) were between 18 and 24 years old.[37] Among the 110 men sentenced for robbery in the higher courts over the same period, 61 offenders (approximately 55%) were aged 18 to 29 years, and 45 (approximately 41%) were between 18 and 24 years old.[38]

29 The Sentencing Snapshot for the offence of recklessly causing serious injury also shows that a significant proportion of those sentenced in the higher courts for this offence over the same five year period were young men.[39] We would reject the submissions of counsel for the applicant that the fact that 18 year old men are not over-represented in these statistics is contrary to the remarks that his Honour made about the prevalence of this offending among young men generally.

30 The statistics above support his Honour's statement that young men are prone to committing the offences to which the applicant pleaded guilty. We would, therefore, accept the Crown submission that, even if defence counsel had been given an opportunity to make submissions relating to the prevalence of this kind of offending by young men, any such submission would have been met by statistics which establish the accuracy of his Honour's view. In other words, this is one of those unusual cases in which a possible failure to accord procedural fairness could have made no difference to the sentence imposed.

31 Further, even if those statistics had been equivocal, the circumstances of this offending by this offender justified the emphasis which the judge placed on denunciation and general and specific deterrence. Thus, even if sentencing error were established, we do not consider that different individual sentences or a different total effective sentence should be imposed on the applicant.

The learned sentencing judge erred in imposing sentences, orders for cumulation and a non-parole period that were manifestly excessive, in particular having regard to the applicant's:

(i) youth;

(ii) absence of previous convictions;

(iii) extensive admissions;

(iv) plea of guilty at the earliest opportunity;

(v) remorse;

(vi) reasonable prospects of rehabilitation;

(vii) low-moderate risk of re-offending; and

(viii) post-traumatic stress disorder as a result of experiences growing up in Sudan and Egypt and the consequences of this to his moral culpability, to the role of general and specific deterrence, and to his burden of imprisonment.

34 It was submitted that the total effective sentence imposed by his Honour was towards the top of the Crown range, whilst the non-parole period imposed exceeded it. The applicant contends that, in light of the mitigating factors discussed above (particularly, the applicant's youth) the sentences and non-parole period imposed by his Honour were outside the appropriate range for these offences, and reflect the excessive weight the judge gave to general and specific deterrence, and denunciation of the applicant's conduct.

35 Counsel for the applicant argues that the community 'had the most to gain from [the applicant's] rehabilitation' and, accordingly, a lower sentence should have been imposed on the applicant.

36 As has frequently been said, the ground of manifest excess does not admit of much argument. Despite the offender's youth and very unfortunate background, it is not reasonably arguable that sentences imposed on the individual counts were manifestly excessive. Of course, sentencing statistics must be used with caution. However, the sentences on charges 1 and 12 (armed robbery) were lower than the median sentence of three years' imprisonment imposed for this offence between 2006−2007 and 2010−2011. Only the sentence of 26 months imposed on charge 5 and the sentence of 27 months imposed on charge 13 (robbery) exceeded the median of two years' imprisonment for that offence and most of the other sentences imposed on the robbery charges were lower than that median. Neither of the sentences imposed for recklessly causing serious injury (24 months on charge 3 and 30 months on charge 15) exceeded the median sentence imposed for that offence. The sentences imposed on these charges adequately reflect the mitigating factors on which the applicant was entitled to rely.

37 These offences occurred in the course of a terrifying spree of violence, over a 22 day period. Much of the violence, particularly that covered by counts 14 and 15, was entirely gratuitous. The offences covered by charges 3 and 15 (recklessly causing serious injury) involved sustained and brutal attacks on the victims. The victims of the robberies or armed robberies covered by charges 1, 2, 4, 5 and 13 were punched or kicked in the head and the victim of charge 12 had his hand sliced by a knife.

38 All of the victims are likely to have less confidence that they can travel on public transport or use other public facilities safely. The applicant was the oldest of the identified offenders, two of whom were aged only 13 and 14 respectively and some of whom have been dealt with in the Childrens' Court of Victoria. The circumstances of the offending made it appropriate for his Honour to emphasise general and specific deterrence and denunciation in sentencing the applicant. It was also appropriate for the judge to make orders for cumulation, which were in fact relatively modest.

39 In his careful sentencing remarks, his Honour referred to all relevant mitigating factors, commenting that the applicant's youth was 'a very significant consideration'.[40] He applied the first principle in Verdins[41] generously, in finding that the applicant's moral culpability may have been somewhat reduced by his posttraumatic stress disorder. He also correctly acknowledged that this condition would make imprisonment more burdensome for the applicant than for an offender not suffering from that condition, and that there was a significant risk that it might adversely affect his mental health.

40 As Maxwell P said in R v Studdard[42] in relation to this ground of appeal:

The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong...that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.[43]

41 In our opinion, the claim that the individual sentence and total effective sentence are manifestly excessive is hopeless. For that reason, we would refuse leave to appeal on the basis of proposed ground 1.

42 The order of the Court is that leave to appeal be granted on the basis of ground 2, but that the appeal should be dismissed.

[1] Several of the applicant's co-accused, who were aged between 13 and 16, were dealt with in the Children's Court of Victoria. At the time of sentencing, the remainder of the applicant's co-offenders had not been identified by the police.

[2] DPP v Ring Chol (Unreported, County Court of Victoria, Judge Tinney, 27 April 2012) ('Reasons') [8].

[29] Sentencing Advisory Council, Sentencing Snapshot No 122: Sentencing trends in the higher courts of Victoria 2006-07 to 2010-11, Armed Robbery (June 2012); Sentencing Advisory Council, Sentencing Snapshot No 126: Sentencing trends in the higher courts of Victoria 2006-07 to 2010-11, Causing Serious Injury Recklessly (June 2012). See also Sentencing Advisory Council, Sentencing Snapshot No 61: Sentencing trends in the Magistrates' Court of Victoria 2004-05 to 2007-08, Causing Serious Injury Recklessly (December 2008).

[35] See also the comments relating to the notoriety of the prevalence of armed robbery and aggravated burglary in R v Droste [2009] VSCA 102.

[36] Sentencing Advisory Council, Sentencing Snapshot No 122: Sentencing trends in the higher courts of Victoria 2006-07 to 2010-11, Armed Robbery (June 2012) Figure 1.

[38] Sentencing Advisory Council, Sentencing Snapshot No 121: Sentencing trends in the higher courts of Victoria 2006-07 to 2010-11, Robbery (June 2012) Figures 1 and 3.

[39] Sentencing Advisory Council, Sentencing Snapshot No 126: Sentencing trends in the higher courts of Victoria 2006-07 to 2010-11, Causing Serious Injury Recklessly (June 2012), Figures 1 and 3. Of the 542 men sentencing for this offence, 295 (54%) were aged 18 to 29, and 157 (approximately 29%) were aged 18 to 24. It should also be noted that most of those convicted of this offence are sentenced in the Magistrates' Court of Victoria: see Ashdown v The Queen [2011] VSCA 408, [9] (Maxwell P).

Chol v The Queen [2012] VSCA 204

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Judgment (128 paragraphs)

Chol v The Queen [2012] VSCA 204 (31 August 2012)

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Cases Cited (2)