Dieu Chol v The Queen [2016] VSCA 252

1 The applicant pleaded guilty to one charge of intentionally causing serious injury ('ICSI'). He was sentenced to four years and nine months' imprisonment, with a non-parole period of three years and three months. He now seeks leave to appeal against the sentence.

2 For reasons which follow, we would refuse leave to appeal. In our opinion, neither of the proposed grounds of appeal is reasonably arguable. Given the seriousness of the offending, we regard the sentence as lenient in the circumstances.

3 In his sentencing reasons, the judge described the offending, and its consequences, in these terms:

Briefly, at about 6 pm on 23 April 2012 you attended the Nicholson Street mall in Footscray with a number of friends. The victim, Mr Birru, had dinner with two friends and then attended a café in the mall. He left the café at approximately 7.20 pm and attended the Coles supermarket. At 7.28 pm he walked back through the mall and had a conversation with two unidentified females. You were nearby with a group of males and females. The two females started walking through the mall and the victim was in close proximity to them. You had a conversation with the victim and he pushed you in a gentle way. You walked behind him and after grabbing him by the shoulder, spun him around and punched him.

You followed the victim and threw punches at him as he tried to walk away. The complainant then swung at you and you proceeded to punch him a number of times to the head. The complainant tried to get away from you. He fell to the ground. You then knelt over the top of him, pinning him to the ground, and punched him at least ten times to the head. A female close by held the complainant's legs down. You stood up and kicked him to the head. You were pulled away by an unidentified male and as this occurred, you again kicked the victim to the head. The incident was captured on CCTV footage. You were arrested a short time later and interviewed. You showed no remorse when you were interviewed.

The complainant's injuries were as follows:

• extensive bleeding to his face;
• a fracture to the right eye socket;
• a fracture to the right temporal bone (base of the skull);
• severe swelling to the right eyelid;
• swelling to the lower and left eyelids;
• reduced movement to both eyes;
• tenderness to the right lower ribs;
• abrasions to both knees.

The victim spent 12 days in hospital and underwent surgery to repair the fractures.

I have read the victim impact statements. The victim has suffered significantly as a result of your assault upon him. He suffers ongoing physical disability. His vision is blurry. He is to undergo another operation on his eyes in the next few months. He suffers discomfort on the right side of his face and, at times, feelings of dizziness. He feels anxious and insecure. He has become impotent. He is undergoing regular counselling. In addition, he has not been able to participate in the life of his community in the way that he used to and he is unable to work. This is not a case where the victim has made a good recovery from his injuries. His life is still profoundly affected three years after you assaulted him.

Mr Chol, you have committed a serious offence; an offence that carries a maximum penalty of 20 years' imprisonment. The victim had done nothing to you, or anyone else, to warrant this assault upon him. Your attack was brutal and fierce. It occurred in a public place. When the victim was on the ground you repeatedly punched him to the head. You kicked him twice to the head. He has sustained injuries that continue to impact on the quality of his life. In these circumstances general deterrence, just punishment and denunciation are all highly relevant sentencing considerations.[1]

4 None of these findings were challenged. They demonstrate, in our view, that this was a very serious instance of ICSI. The persistence of the attack and the delivery of repeated blows to the head - punching the victim 10 times and kicking him twice - show a determination to cause serious injury which made the applicant's culpability high indeed.[2] Moreover, as the judge set out, both the immediate and long-term consequences for the victim were very serious indeed.

5 In Nash v The Queen,[3] Maxwell P identified a list of factors that were 'routinely taken into account by sentencing judges in assessing the gravity of particular instances of ICSI'.[4] Those factors were as follows:

• the offender's proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;
• the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
• how vulnerable the victim was;
• whether a weapon was used;
• how long the attack on the victim lasted; and
• whether the offender acted alone or in company?[5]

6 This list of factors was descriptive, rather than prescriptive, and was not said to be comprehensive. Nevertheless, it provides a useful framework for the assessment of offence gravity in a particular case. And we would endorse the view that:

The development of such a list of indicia should be conducive to consistency in sentencing and - hence - to public confidence in the criminal justice system. When one case was said to be more or less serious than another, it would be apparent on the face of the sentencing reasons why that was so. Enabling sentencing judges to provide a clearer explanation of how the seriousness of a particular offence has been assessed should reduce the scope for perceptions of inconsistent treatment as between one case and another and - hence - remove one of the main sources of sentence appeals.[6]

7 Ordinarily, in our view, the first two factors - the offender's proven intent and the seriousness of the injury - will be the key indicators of the seriousness of an ICSI offence. The presence of one or more of the other factors listed would be likely to aggravate the seriousness of the offending.

8 When judged against those two key indicators, the present case must be seen - so far as offence gravity is concerned - as relevantly comparable to Nash itself (and to Cedic, discussed below). It is true, as counsel for the applicant submitted, that this case lacked the aggravating factors of use of a weapon; premeditation; and offending in company. But none of those factors was present in Nash either.

9 In Nash, the Court concluded that a sentence of seven years' imprisonment for ICSI, on a plea of guilty by a person with no relevant prior convictions, was not manifestly excessive. In the present case, by contrast, the applicant did have relevant prior convictions - for assault, assault police and threat to kill. Moreover, as the judge found, he has 'a propensity to behave violently towards others'.[7] His counsel did not challenge this finding but submitted that the judge had given too much weight to it. That contention can only be assessed, of course, by examining the sentence itself.[8]

10 Two other features of the case made the sentencing considerations of specific deterrence and community protection of particular importance. The first was that the applicant committed this offence a mere three weeks after he had been released on parole. Not only is that an aggravating factor in its own right but it is a powerful indication that the prior experience of imprisonment has not operated as a sufficient deterrent. As will appear, that conclusion is reinforced by the applicant's commission of subsequent offences, which the judge also took into account. (That is the issue raised by proposed ground 1.)

11 Secondly, the applicant was under the influence of the drug 'ice' when he committed this offence. As recorded in the report provided to the sentencing court by Dr Glowinski of Forensicare, the applicant had told him that he

had been using 'too much ice' in the days and hours leading up to the index offence. He said that he had been up for three days straight and had been smoking ice all night before and the day prior to the index offence. He could not estimate how much he had ingested. He said that he had also been drinking alcohol in large quantities as he found it difficult to get drunk whilst using ice.[9]

12 Dr Glowinski's report also recorded the applicant as saying that he had used ice, heroin and cannabis since his arrival in Melbourne in 2010:

over recent years he has been using ice intravenously on an almost daily basis. He said that he uses generally as much as he can get, maybe about a gram per day.

...

[The applicant] told me that he has used heroin on a regular basis intravenously, about 0.5gms most nights. He said that he uses heroin to put himself to sleep after a long ice binge.

...

[The applicant] told me that he would spend all of his money on the drugs and when he ran out of money and drugs, he would commit offences so as he could use again.

13 The conclusion of the expert report was in these terms:

[The applicant] acknowledges that he was using ice and other substances in significant quantities in the lead-up to the offence. He recalls approaching the victim to discuss matters concerning his female friend. He recalls being attacked and then defending himself. He partly acknowledges the excessive nature of his defence but justifies this by citing his traumatic background. To my mind there seems no suggestion of a causal nexus between his potential psychiatric diagnosis and his actions on the day. Rather it seems that his inhibitions were lowered by sleep deprivation, intoxication with ice and alcohol, in combination with being upset with the victim's behaviour towards his friend. His behaviour during this incident seems in keeping with his described moral code of showing strength to avoid being victimised.[10]

14 On the basis of this evidence, it could safely be concluded that the offending was the direct result of the applicant's ingestion of the drug. In a case such as this, where the offender is a habitual user of the drug in question, considerations of specific deterrence, community protection and general deterrence are necessarily of particular importance in sentencing.[11] (An offender's prior knowledge of the adverse effects of intoxication can aggravate the seriousness of an offence committed while intoxicated,[12] but no such argument was advanced by the prosecution in the present case.)

15 Complaint is made that, after referring to the applicant's prior convictions, the judge continued in these terms:

You also have relevant subsequent offences. On 5 March 2013 you appeared at the Sunshine Magistrates' Court for offences that included robbery and threat to inflict serious injury. You were placed on an 18 month community corrections order with a number of conditions that were designed to support your rehabilitation. You breached the order by committing further offences. You were remanded in custody on 9 January 2014.

On 17 February 2014 you appeared at the Broadmeadows Magistrates' Court for a large number of offences including threat to kill, assault with a weapon, assault to prevent lawful detention, and prohibited person possessing a firearm. You were sentenced to an aggregate term of eight months' imprisonment. The breach of the community corrections order was also dealt with. The order was cancelled and you were sentenced to four months' imprisonment, to be served cumulatively upon the eight month sentence. This made a total effective sentence of 12 months, and the magistrate ordered that you serve a minimum term of five months before you would be eligible for release on parole. There was a declaration of 50 days pre-sentence detention. You were not released on parole. You were released upon the completion of your sentence on 28 December 2014.

Because of this history, specific deterrence and protection of the community are relevant sentencing considerations. Your prior criminal history, together with your personal circumstances - which I will discuss more fully in a moment - also explain why I regard you as a poor prospect for rehabilitation. Past attempts to support you on a community corrections order, and on parole, have not been successful. Dr Glowinski from Forensicare states in his report that there is little to suggest that you have developed the capacity to change your pattern of behaviour.[13]

16 The contention in the written case is that the judge here fell into error

by taking into account the applicant's subsequent offending when assessing the degree to which specific deterrence and protection of the community apply in this case.

17 In our view, this contention is based on a misreading of the sentencing reasons. As we have said, considerations of specific deterrence and community protection were squarely relevant to the sentencing decision, because of the applicant's prior convictions and because this offence was committed while he was on parole. In context, therefore, that is the 'history' to which his Honour must be taken as referring.

18 That reading would seem to be confirmed by the following sentence, in which his Honour says:

Your prior criminal history ... also explain[s] why I regard you as a poor prospect for rehabilitation.[14]

There is, in any case, no doubt that subsequent offending is a relevant consideration in the sentencing synthesis, as it sheds important light on the question of an offender's prospects of future rehabilitation.[15]

19 Ultimately, the submission for the applicant was that, even if there was no specific error in this respect, the sentence was so obviously excessive that the evidence of subsequent offending must have been misused. That is, the applicant must have been impermissibly punished for those subsequent offences. We deal with that argument under ground 2.

20 As invariably occurs when a ground of manifest excess (or manifest inadequacy) is raised in this Court, there was debate about whether the sentence imposed could be justified by reference to current sentencing practices, as exemplified by relevant sentencing decisions. As this Court said recently in Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym):

the statutory requirement to take account of 'current sentencing practices' was plainly intended to promote consistency in sentencing. It is hardly surprising that courts - both at first instance and on appeal - pay close attention to this requirement, since consistency is 'fundamental to the administration of criminal justice'.[16]

21 What is particularly informative in the determination of the applicable range is current sentencing practice 'as revealed by those comparable cases concerned with the relevant category of seriousness of the offence.'[17] As the Court recently stated in Nguyen v The Queen:

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.[18]

22 The written case for the applicant submitted that the sentences imposed in a number of cases - said to be relevantly comparable - demonstrated that the sentence imposed on the applicant was outside the range reasonably open to the judge in the present case. Reliance was placed for this purpose on four decisions of this Court, as follows: Tamati v The Queen;[19] NCH v The Queen;[20] McGillivray v The Queen;[21] and Fletcher v The Queen.[22] (All of these decisions are to be found in the table which Maxwell P attached to his decision in Nash.)

23 In response, the Crown's written case relied on four other decisions of this Court, all of which post-date Nash. These decisions were said to show that the present sentence was 'not at odds with current sentencing practices'. Those decisions were: Gumwel v The Queen;[23] Kennedy (a pseudonym) v The Queen;[24] Picone v The Queen;[25] and Xiberras v The Queen.[26] The Crown also relied on the decision in Nash itself.

24 It is unnecessary for the purpose of these reasons to deal in any detail with these decisions. It is sufficient to record that we have read each of them carefully, and have had regard to the factors listed in Nash in considering the seriousness of the offending in each case.[27] We have also had regard to relevant personal circumstances of the offender, both those relied on in mitigation and those (such as prior convictions) which would have pointed towards a heavier sentence.

25 Nothing in any of the decisions referred to suggests that the sentence imposed on the applicant was outside the range reasonably open to the judge in the circumstances of this case, proper weight being given to all relevant factors.[28] On the contrary, given the objective seriousness of the offending, the sentence must be regarded as lenient, notwithstanding the matters which could be relied on in mitigation.

26 Care must always be taken to ensure that cases said to be comparable are properly characterised as such. Comparability of offence seriousness will almost always be essential if a case is to provide any meaningful guidance. But comparability in that respect will rarely be sufficient by itself, given that the personal circumstances of the offender will usually have had a material impact on the sentence in a particular case.

27 The point is well illustrated by two of the decisions relied on in the applicant's written case. In NCH, a sentence of four years' imprisonment was imposed by the sentencing judge for a very serious instance of ICSI.[29] But an examination of the reasons of this Court on appeal reveals that the offender had received a sentencing discount (presumably quite substantial) for co-operating with police and undertaking to give evidence against his co-offenders. But for that co-operation and the plea of guilty, the Court said, the sentence would have been 'manifestly inadequate to reflect the gravity of the offending in issue and the necessity for general deterrence.'[30] Given these unusual features, the decision could not have provided any guidance as to the sentencing range applicable to the present case.

28 Fletcher also involved a very serious instance of ICSI. In that case, injury was inflicted by the use of a variety of weapons, and the offender had a serious and relevant history.[31] The reasons of this Court reveal that the offender was originally sentenced to five years' imprisonment for ICSI, a sentence which the Court regarded as 'if anything, lenient'.[32] It was only because of the principle of parity, and the need to ensure appropriate relativities between sentences imposed on co-offenders, that the sentence was reduced to four years.[33] Again, for obvious reasons, that sentence could not have provided any guidance to sentencing range in the present case. Counsel who appeared for the applicant at the hearing of the present application (but had not prepared the written case) properly conceded that neither case could be regarded as relevantly comparable.

29 In Nash, Maxwell P reviewed the decisions of this Court in Jackson v The Queen[34] and Cedic.[35] In Jackson, the sentence for ICSI was four years and six months' imprisonment; in Cedic, it was seven years and six months' imprisonment. In each case, the appeal against sentence was rejected. Because those decisions are relevant to sentencing range in the present case, it is necessary to refer again to their salient features.[36]

launched a vicious and unprovoked attack upon his victim. He punched him to the head, causing him to fall to the ground where he lay motionless. He then delivered anything up to four kicks to the head and body, all of them directed at a man who was entirely helpless. The victim was hospitalised and suffered very serious injury, some it having residual and perhaps lasting effect.[37]

Weinberg JA (with whom Maxwell P agreed) said that it was 'a serious example of offending of this kind'.[38] The chief mitigating factor relied on by the offender, who had no relevant prior convictions, was that there had been a lengthy delay (of some three years) between the date of the offending and the date of sentence, during which he had had the matter hanging over his head.[39] In the view of the majority, the sentence of four years and six months was 'moderate', which showed that the mitigating effect of delay, 'in all its aspects, must have been given appropriate weight.'[40]

31 In Cedic, the offender punched the victim a number of times to the temple, knocking him unconscious. After the victim had fallen to the floor, the offender proceeded to kick him in the face, chest, ribs and groin and stomped on his face while verbally abusing him. In all, between 20 and 30 punches and kicks, and six 'stomps', were inflicted on the victim while he lay unconscious. The offender had prior convictions for violence. He had shown some remorse. The prolonged nature of the assault was an aggravating factor.[41]

32 On appeal, this Court rejected the complaint of manifest excess. Tate JA (with whom Buchanan and Ashley JJA agreed) said:

The particulars of the indictable offence are horrific. While the offence was not carried out in a public place, it was carried out in front of several children and the appellant's partner, all of whom must have been terrified when the appellant threatened to 'kill them all'. The persistent, unprovoked, prolonged and bloody attack on an unresponsive, unconscious man and the attempts by the appellant to break [the victim's] nose and arm reveal the considerable degree of criminal culpability involved in the offending.

Furthermore, the offending has crippled [the victim] psychologically and financially in circumstances in which he was an innocent party. [42]

33 It will be noted that, in Jackson, the offender had no relevant prior convictions, and the chief mitigating factor relied on was a lengthy delay. Nevertheless, the majority viewed the sentence of four years and six months as 'moderate'.[43] In Cedic, the offender pleaded guilty and had prior convictions for violence. The nature of the offending was quite similar to the present, in that the victim was punched and then kicked in the face and body while he was on the ground, and the attack was described as 'persistent'. The sentence of seven years and six months' imprisonment was held to be within range.

34 In the interests of consistency of sentencing, the decisions in Nash and Cedic should be seen as 'yardsticks' against which to examine a proposed sentence for an offence of ICSI in this category of seriousness.[44] Using the language of Nguyen, the sentences imposed in those cases are relevant comparators when the sentencing court is looking to maintain 'appropriate relativity' of sentences.[45]

35 The applicant's plea in mitigation emphasised his disadvantaged background. The judge's findings on that issue were as follows:

I now turn to matters relevant to your background and those matters in mitigation. You are 29 years old. You were born in Southern Sudan. Your parents and your three siblings were killed during the civil war that ravaged that country. When you were seven years old you fled with your aunty and her six children. You spent the next seven years in a refugee camp. It is hard to imagine how difficult the first 14 years of your life must have been.

In 2003 you came to Australia as a refugee with your aunty and her children. The family settled in Western Australia and you spent little time at school. You are unable to read and write. From the age of 15 you worked variously for KFC, Ingham Chickens, and as a 'brickies' labourer. You were a father at the age of 16. You did not remain living with your aunty and you moved to South Australia. You then moved to Victoria with a friend, and that friend was stabbed to death in 2010.

Given your personal history, it is perhaps not surprising that alcohol abuse and drug abuse have been significant problems in your life. You have also had some involvement with mental health services.

Mr Chol, I am satisfied that you have come from circumstances of great deprivation and disadvantage. There must be some moderation of the principles of deterrence and denunciation to reflect the very great hardship you suffered during your formative years. On the other hand, the hardship you have suffered has left you with a propensity to behave violently towards others. It has been a feature in a number of your court appearances. This means that I must give appropriate weight in sentencing to the principle of community protection.[46]

36 With respect, this was an exemplary analysis. As the High Court stated in Bugmy v The Queen,[47] an offender's deprived or traumatic background may be relevant in different ways to the different purposes of punishment. Thus, the effects of background disadvantage may be viewed as reducing the offender's moral culpability while at the same time increasing the importance of protecting the community from the offender. As can be seen, his Honour drew a distinction of exactly that kind.

37 The appeal submission identified four other factors which were said not to have been given sufficient weight in mitigation, as follows:

• the delay of almost two years between the offending and the issue of a summons, which the judge described as 'totally unacceptable';
• the consequent loss of the opportunity to obtain some concurrency of sentence with a sentence imposed by the Magistrates' Court in February 2014;
• time spent in custody because of the parole breach (four months) and because of the subsequent offending referred to under ground 1; and
• the more positive view of a second expert, Mr Crewdson, about the applicant's prospects of rehabilitation.

38 As to the last of these, the judge expressly adopted the opinion of Dr Glowinski, as he was entitled to do.[48] Otherwise, these matters were all referred to in the sentencing reasons. We see no reason to doubt that the judge gave each of them appropriate weight. Had it not been for the delay and the other mitigating factors relied on, a substantially higher sentence would have been warranted.

39 The application for leave to appeal is therefore refused.

[1] DPP v Chol (Unreported, County Court of Victoria, Judge Grant, 3 July 2015) [3]-[8] ('Reasons').

[2] See Cedic v The Queen [2011] VSCA 258 [30] ('Cedic').

[3] (2013) 40 VR 134 ('Nash').

[8] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5].

[11] DPP v Granata [2016] VSCA 190 [171]-[174].

[12] R v Martin [2007] VSCA 291; (2007) 20 VR 14, 29 [53].

[13] Reasons [10]-[12] (emphasis added).

[15] See DPP v Rongonui [2007] VSCA 274; (2007) 17 VR 571, 581 [42].

[16] [2016] VSCA 148 [119] (citations omitted).

[17] Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341, 401 [174], cited in Nash (2012) 40 VR 134, 135 [1].

[18] [2016] VSCA 198 [72] ('Nguyen') (citation omitted).

[19] [2012] VSCA 153.

[20] [2012] VSCA 129 ('NCH').

[21] [2012] VSCA 3.

[22] [2011] VSCA 4 ('Fletcher').

[23] [2016] VSCA 14 ('Gumwel').

[24] [2015] VSCA 49.

[25] [2015] VSCA 5.

[26] [2014] VSCA 170 ('Xiberras').

[27] (2013) 40 VR 134, 137 [10].

[28] Clarkson v The Queen (2011) 32 VR 361 384 [89].

[29] DPP v NCH (Unreported, County Court of Victoria, Judge Hannan, 14 December 2011).

[30] NCH [2012] VSCA 129 [27].

[31] Fletcher [2011] VSCA 4 [10].

[34] [2013] VSCA 14 ('Jackson').

[35] Cedic [2011] VSCA 258.

[36] Paragraphs 30-32 below reproduce the analysis in Nash (2013) 40 VR 134, 138 [13]-[15] (citations in original).

[37] Jackson [2013] VSCA 14 [4].

[41] Cedic [2011] VSCA 258 [21].

[43] Jackson [2013] VSCA 14 [11].

[44] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54], quoting DPP v De La Rosa (2010) 243 FLR 78, 98 [304] (Simpson J).

[45] [2016] VSCA 198 [72] (Redlich JA); see [21] above.

[47] [2013] HCA 37; (2013) 249 CLR 571, 595 [44].