Deng-Mabior v The Queen [2015] VSCA 179

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The applicant, now aged 34, pleaded guilty to one charge of having recklessly caused serious injury to his former partner ('R'). He was sentenced to a term of 2 years' imprisonment, to be followed by a 2 year community correction order ('CCO') with treatment and rehabilitation conditions.

2 He now seeks leave to appeal against sentence. He relies upon the following grounds:

1. The sentencing judge erred in sentencing on the basis that the injury and the circumstances in which it occurred are very serious.
2. The total sentence imposed is manifestly excessive.
3. Failure to fix a non-parole period.

3 As will appear, the first two grounds were abandoned at the outset of the hearing. We would grant leave to appeal on the remaining ground, allow the appeal and resentence the applicant to a term of 18 months' imprisonment, to be followed by a 2-year CCO with additional conditions.

4 This appeal highlights a legislative anomaly in relation to 'combination sentences' under the CCO regime, that is, sentences of the kind imposed in the present case which combine a term of imprisonment with a CCO. As amended in 2014, s 44 of the Sentencing Act 1991 ('the Act') permits the sentencing court to combine a CCO with a prison term of up to 2 years.

5 If the term of imprisonment is less than 2 years,[1] the court has a discretion not to fix a non-parole period and instead to order that the CCO commence immediately upon completion of the custodial period. That was the intention of the sentencing judge in the present case and it was, with respect, an entirely appropriate course in the circumstances of the case.

6 Anomalously, however, the imposition of a 2 year sentence (rather than, for example, a sentence of 1 year and 11 months) meant that s 11(1) of the Act was engaged. Her Honour was required by that provision to fix a non-parole period, notwithstanding her intention to combine the imprisonment with a CCO. We have recommended that this anomaly be corrected promptly.

7 The applicant and R were both born in Sudan, but escaped from that country during the terrible days of the civil war. They met in a refugee camp in Kenya in 2002, and commenced a relationship. By 2003, R had moved to Australia. Several years later, the applicant arrived here as well, and they re-established their relationship. In the ensuing years, they had three children together, two boys and a girl.

8 Their relationship was somewhat strained, and they lived together only intermittently. It seems that the applicant had been residing with R and her family in Sunshine for a period of about 2 months prior to the commission of this offence.

9 On the evening of Sunday 19 January 2014, R went to sleep in her bedroom, which she shared at the time with their young daughter. Their two sons were asleep in the bedroom opposite.

10 At about 6:45 am the following morning the applicant awoke, having slept on the couch during the previous night. He was significantly inebriated. Initially, there was a verbal altercation between R and himself. That altercation soon escalated and became violent. R was frightened and ran from her bedroom to the kitchen, where she picked up a knife. She then returned to the bedroom.

11 A struggle ensued, during the course of which the applicant gained possession of the knife, and stabbed R twice to the chest. He dialled triple zero, and handed her the phone to speak to emergency services. He then left the house, and drove away from the scene.

12 R was transported by ambulance to the Royal Melbourne Hospital. Later that day, the applicant was located in Braybrook, and arrested by police. At the time of his arrest, he was intoxicated, and not in a fit state to be interviewed.

13 The following morning, police conducted a record of interview. The applicant said that he had been living with R for the past month. He had been out drinking with friends on the Sunday 19 January. He had slept on the couch that evening. When he awoke the next morning, he began drinking again. R berated him for being drunk, which led to the ensuing argument and the physical confrontation.

14 The applicant told police that, in the course of the argument, R had left the bedroom and armed herself with a knife taken from the kitchen. He had seized the knife from her during the course of the struggle. He accepted that, in doing so, he had stabbed her twice to the chest. He had arranged for an ambulance to be called, but had not waited until it arrived. Rather, he had driven off to buy alcohol. He had later spoken by telephone to a family member, who told him that the police were looking for him. He blamed alcohol for what had happened. He also attributed responsibility to R for the injuries she had sustained.

15 R spent approximately 2 weeks in hospital. She twice underwent surgery. It appears that she received two stab wounds to the left chest. She suffered a collapsed lung, a fractured rib, bruising, and a cut airway which required further surgery. The effects of these injuries were ongoing.

16 R suffered post-traumatic stress disorder, anxiety, sleeplessness and feelings of insecurity. The victim impact statement, and accompanying medical material filed on the plea reveal that she has been seeing a psychologist on a weekly basis since the incident, and has been receiving ongoing medical treatment.

17 The maximum penalty for recklessly causing serious injury is 15 years' imprisonment. The applicant pleaded guilty prior to committal on 19 June 2014. The Crown acknowledged that the plea of guilty had been entered at an early stage. The applicant has now been in custody for almost 18 months since his arrest on 20 January 2014.

18 The sentencing judge noted that, since his arrival in this country, the applicant had held a number of jobs. He had been gainfully employed for most of the time. He had worked as a supervisor at Tasman Meats for about four years, and had been a production team leader at CSL for about six months. He had also been a supervisor at DHL Supply Chain, where he was employed at about the time of this incident.

19 Her Honour observed that the applicant's consumption of alcohol had increased significantly at about the time of the commission of this offence. In December 2013 he had discovered that two men who had been under his supervision when he fought in the Sudanese army had recently been killed. This caused him to leave work, and led to nightmares and a revival of the memories of the horrors of war that he had experienced.

20 The sentencing judge accepted evidence from a forensic psychologist to the effect that, at the time of this offence, the applicant was suffering from a complex post-traumatic stress disorder and that, on the day of the incident, his judgment would have been impaired as a result of his intoxication.

21 Her Honour noted that the applicant had two previous convictions for driving whilst his licence was suspended. More significantly, he had appeared at the Sunshine Magistrates' Court in October 2013 facing six charges of having contravened a family violence intervention order, as well as criminal damage and unlawful assault. That intervention order had been made in April 2013 at the request of the police, who had attended at the house in response to an incident where the applicant had threatened to kill R. He was armed with a small knife.

22 At the October 2013 appearance, the applicant had been convicted and placed on a community-based order for a period of 15 months, with various conditions including 60 hours of unpaid community work, and mental health assessment and treatment as directed, including anger management. Her Honour noted that those offences had been committed before the applicant had reported a resumption of nightmares and had resorted to alcohol in an effort to ward off his shocking memories.

23 The sentencing judge recognised that the current offence had been committed whilst the applicant was still on that community-based order, and indeed, whilst the original intervention order was in place.

24 Her Honour identified a number of mitigating and aggravating factors. Among the mitigating factors, she noted the absence of any significant history of violent offending, whether against the victim or others. She also noted that the applicant had been heavily intoxicated at the time of this offence, and that the stabbing of R had not been in any way premeditated. She took into account that it was R who had procured the knife.

25 With regard to the aggravating factors, her Honour observed that R had taken possession of the knife because she was in legitimate fear of the applicant. She also considered it to be an aggravating factor that after stabbing her he had left her, effectively, on her own, bleeding profusely, in the presence of their three young children. Finally, she noted that the offence involved domestic violence of a very serious kind, in breach of an intervention order, and whilst the applicant was on a community-based order for previous offences relating to the same victim, making specific deterrence an important consideration.

26 Her Honour concluded that, in the exceptional circumstances of the case, the applicant's intoxication reduced his moral culpability. This conclusion was warranted, her Honour said, because of 'the clear connection between your mental state and the excessive consumption of alcohol for self-medication'.

27 Her Honour emphasised the importance of general deterrence in cases of family violence:

The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats of violence. The sentences must be of such an order as to strongly denounce violence in a domestic relationship.

Her Honour here cited what was said by this Court in Marrah v The Queen,[2] to which she had been referred by the prosecutor.

28 She went on to refer to the need to punish the applicant for what he had done, noting that the injuries, and circumstances in which they occurred, were 'very serious'.

29 At the commencement of the oral hearing before this Court, it was made plain to counsel for both the applicant and the respondent that our provisional view was that the complaint embodied in ground 3 was unanswerable. It followed that the applicant would have to be resentenced irrespective of whether there was any merit in grounds 1 or 2. That prompted counsel for the applicant, sensibly, to abandon those grounds.

30 We should add that, although we did not hear any oral argument in support of either of those grounds, we had read the written submissions filed in support of them and had formed the view that the grounds were entirely without merit.

31 This ground concerns the failure of the sentencing judge, when sentencing the applicant to 2 years' imprisonment, to fix a non-parole period.

32 The starting point is s 11 of the Act, which relevantly provides:

11 Fixing of non-parole period by sentencing court

(1) If a court sentences an offender to be imprisoned in respect of an offence for -

(a) the term of his or her natural life; or

(b) a term of 2 years or more -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

(2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than 1 year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.

(3) A non-parole period fixed under subsection (1) or (2) must be at least six months less than the term of the sentence.

33 When the CCO regime was first introduced, s 44 of the Act provided that a CCO could only be combined with a sentence of imprisonment of three months or less. Subsequently, s 44 was amended to enable a CCO to be combined with a sentence of imprisonment of up to 2 years.[3]

34 The Explanatory Memorandum accompanying the amending Bill made it plain that the amending provision was not intended to change the operation of s 11. It stated as follows:

New section 44(1) provides that when sentencing an offender in respect of one, or more than one, offence (other than an 'arson offence'), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all terms of imprisonment to be served (after deduction of pre-sentence detention under section 18) is 2 years or less.

Given the operation of section 11 of the Sentencing Act 1991, this means that an offender may receive a sentence of imprisonment in respect of which a non-parole period has been fixed, and then be required to complete a community correction order. Under section 11(1), if a court sentences a person to be imprisoned for a term of 2 years or more, it must fix a non-parole period unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. If the term of imprisonment is less than 2 years but not less than 12 months, the court may fix a non-parole period. These amendments do not affect the court's discretion as to whether a non-parole period should be fixed in these circumstances.

35 This ground must succeed. The language of s 11(1) is clear and unambiguous. Where a sentence of 2 years or more is imposed, a non-parole period must be fixed unless either 'the nature of the offence' or the 'past history of the offender' make it inappropriate to fix such a period. In the present case, there was nothing about the nature of the offence or the applicant's past history which would have made the fixing of a non-parole period inappropriate.[4]

36 Her Honour's failure to fix a non-parole period is doubtless to be explained by the fact that she was imposing a CCO which she intended should commence immediately upon the completion of the term of imprisonment. Her Honour was clearly alive to the advantages, both for the applicant and for the community, of imposing a CCO with conditions which would address the causes of his offending, specifically his mental illness and his serious alcohol problem. And she was aware of the amendment to s 44 to which we have referred, enabling a CCO to be combined with imprisonment of up to 2 years.

37 Had the sentence been for a term of less than 2 years (and not less than 1 year), her Honour would have had a discretion under s 11(2) not to fix a non-parole period. Once she imposed a sentence of 2 years, however, the mandatory operation of s 11(1) was engaged. As a result, her Honour had no discretion (unless the 'inappropriate' exception applied) to decline to fix a non-parole period.

38 This would seem to have been a legislative oversight, which should be fixed without delay. In our view, the discretion not to fix a non-parole period should apply in all cases where a combination sentence - that is, a custodial term combined with a CCO - can be imposed. In short, the discretion should exist for terms of imprisonment up to and including 2 years. The problem which this appeal has exposed can be readily fixed, by amending s 11(1) so that the obligation to fix a non-parole period applies only if the sentence is for a term of more than 2 years.

39 Shortly after her Honour imposed sentence in this case, this Court handed down the guideline judgment on CCOs in Boulton v The Queen.[5] Under the heading 'CCO or non-parole period?', the Court said this:

As noted earlier, the effectiveness of a CCO is likely to depend on the court's ability to determine:

(a) whether the offender is suitable for a CCO; and

(b) what conditions should be attached to the order to address the particular needs and circumstances of the offender.

As VLA points out, the ability to make such assessments will inevitably diminish the longer the time between the making of the order and the commencement of operation of the CCO.

In the case of a short term of imprisonment, there should ordinarily be little difficulty in undertaking the suitability assessment. Where, however, the court proposes to impose a term of imprisonment of 12 months or more, the difficulties may be quite considerable. As VLA points out, the court has a discretion in those circumstances to fix a non-parole period and/or to impose a CCO.

In some circumstances, it will be more beneficial to fix a non-parole period than to attach a CCO. The Adult Parole Board will then be able to assess, as the expiry of the non-parole period approaches, the offender's rehabilitative prospects, having regard to how he/she has fared in custody, and will be able to tailor parole conditions to the offender's needs as they then appear to be.

VLA made detailed submissions about the advantages and disadvantages of combining a non-parole period with a CCO. We agree, for the reasons advanced by VLA, that there are significant conceptual and practical difficulties in such a combination, and that the sentencing court should ordinarily treat them as alternatives.[6]

40 Two comments should be made regarding this extract. First, as we have pointed out, the choice between a CCO and a non-parole period only arises where a sentence of imprisonment of less than 2 years[7] is to be imposed. In those circumstances, the sentencing court has a choice between fixing a non-parole period and imposing a CCO. But if the custodial term is 2 years, the court is obliged (subject to the exception) to fix a non-parole period, even if a CCO is to be attached. And if the sentence is above 2 years, there is simply no power to combine it with a CCO.

41 Nothing said in Boulton suggested otherwise. Unsurprisingly, the VLA submission which the Court there endorsed was concerned with, and only with, sentences of up to 2 years, where the court has a discretion under s 11 not to fix a non-parole period.

42 Secondly, as the present case illustrates, the sentencing judge may well be able at the time of sentence to assess the offender's suitability for a CCO, even though the period of the CCO will not commence until the conclusion of the custodial term. The advantage of a CCO over a non-parole period in such circumstances is that the court itself can fix the conditions of the CCO and can ensure - as the judge did in the present case - that the conditions address the specific causes of the offending.

43 Her Honour's failure to fix a non-parole period has the result that the exercise of the sentencing discretion miscarried. The sentence must be set aside, and the applicant resentenced.

44 We indicated at the conclusion of the hearing that we proposed to resentence him to 18 months' imprisonment, with a 2 year CCO. Because this would be a fresh exercise of the sentencing discretion, it was necessary for the court to obtain a pre-sentence report.[8]

45 The report subsequently prepared by Community Corrections assessed the applicant as suitable for a CCO. It recommended that a number of conditions be attached, namely:

(a) conditions requiring assessment and treatment for his alcohol dependence and mental health condition;

(b) conditions requiring participation in offending behaviour programs and other treatment and rehabilitation;

46 We are satisfied that the prison term should be combined with a CCO with those conditions attached. The applicant has signified his consent to that order being made.

47 Our reasons for reducing the custodial term by six months may be shortly summarised, as follows:

(a) the applicant has been an exemplary prisoner, his good conduct having earned him a position as head billet with responsibility for organising activities within the prison;

(b) we accept his counsel's submission that this experience of prison - his first - has had a very salutary effect on him;

(c) the protection of the community, and the applicant's prospects of rehabilitation, depend on his receiving proper and sustained treatment for his mental illness and his alcohol dependency. This can be much better achieved under the conditions of a CCO than in custody; and

(d) as explained in Boulton, a CCO with conditions such as these operates punitively for every day it is in force.[9] That being so, and taking into account the punitive and deterrent effect of the time the applicant has spent in custody, we did not consider that any longer period of imprisonment was required to serve the relevant purposes of sentencing.[10]

[1] And not less than 1 year: the Act s 11(2).

[2] [2014] VSCA 119, [25].

[3] Sentencing Amendment (Emergency Workers) Act 2014.

[4] Cf Hunter v The Queen [2013] 40 VR 660.

[5] [2014] VSCA 342 ('Boulton').

[7] And not less than 1 year: see the Act s 11(2).

[9] Boulton [2014] VSCA 342, [90]-[97].