DPP v Kao [2009] VSCA 273

1 I agree with Weinberg JA and Coghlan AJA, for the reasons they have stated, that the appeal should be allowed and the respondent re-sentenced as their Honours propose.

2 On 24 September 2008, the respondent, Hsin Ming Kao, pleaded guilty in the County Court at Melbourne to one count of intentionally causing serious injury. On 10 October 2008, he was sentenced to a term of four years' imprisonment, with a non-parole period of two years and six months. The Director of Public Prosecutions has appealed against that sentence.

3 The facts may be briefly summarised. On 26 February 2008, the respondent, then aged 31 years, attended at a pharmacy in Bridge Road, Richmond, to collect his daily dose of methadone. Shortly thereafter, at approximately 11am, he came across the victim of this offence, Paul Martin. He attacked Martin from behind, lunging at him with a knife that was said to be about 30cm in length. He stabbed Martin in the left side of his lower back, forcing the knife upwards. He twisted the knife in order to inflict more harm before withdrawing it and fleeing the scene.

4 The wound so inflicted ruptured Martin's bowel, spleen, diaphragm, and left lung. It necessitated emergency surgery, and the removal of Martin's spleen. The learned sentencing judge found that Martin had suffered considerably. The medical evidence suggested that he may have been fortunate to survive and that, but for the excellent treatment he received, might not have done so.

5 Following the attack, the respondent returned home and changed clothes. He was arrested later that afternoon. Police searched his premises and located numerous knives fitting the description of that used by him during his attack upon

Martin. They also located two towels which appeared to have blood smears on them.

6 When interviewed by the police, the respondent declined to answer a number of the questions put to him. However, those questions that he did answer indicated that he felt some paranoia as a result of having been told by someone else that there had recently been a gun fired in the proximity of his residence.

7 The sentencing judge described the prosecution case against the respondent as strong. It included photo-board identification, and recognition of the respondent by the victim as being the brother of someone he knew. In addition, the description of the assailant's clothing given by the victim was consistent with video footage of the respondent as he left the pharmacy, moments before the attack occurred.

8 On the plea, it was submitted on behalf of the respondent that, although Martin had denied having at any time said or done anything to provoke the respondent, that was not in fact true. Counsel for the respondent indicated that his instructions were that there had been a history of animosity between Martin and his client. The respondent had, so it was said, expressed concern about Martin, and members of a particular family who lived next door, having together been involved in drug dealing at the housing commission flats where the respondent lived. Counsel submitted that the respondent had been so concerned about that matter that he had previously reported it to security officers at the building.

9 It was also submitted that Martin had, at some stage in the past, threatened the respondent by pointing a handgun at him. Indeed, it was said that Martin had once fired a shot at the respondent.

10 The sentencing judge, not surprisingly, expressed some scepticism as to the veracity of what counsel had been told by his client. The alleged firing of the handgun had never been reported to the police. That incident was said to explain why the respondent had armed himself with a knife on the day of the attack. However, the evidence was that he habitually carried knives, and had done so over many years. That was reflected in his prior convictions.

11 In any event, the sentencing judge correctly characterised this offending as vicious. In her view, the attack was unprovoked and the circumstances which surrounded it suggested, if not pre-planning, at least a willingness to contemplate the use of a knife if the opportunity arose. Her Honour concluded that the offending was 'at the higher end of the spectrum regarding gravity'.

12 The respondent pleaded guilty, and her Honour accepted that this was a significant mitigating factor in his favour. She referred to the utilitarian value of the plea, and the fact that the victim had been spared the ordeal of having to give evidence. However, she expressed doubt as to whether the plea was indicative of remorse and, if so, whether that remorse played a significant part in his decision to plead guilty. Apart from indicting that she had such reservations, she did not come to any final conclusion as regards the question of remorse.

13 The respondent admitted a number of prior convictions. These went back to 1995, when he was 19 years of age. The convictions were of a serious nature. They included armed robbery, which had been committed by the respondent and a co-accused who was at the time in possession of a gun. The respondent had been sentenced to six months' imprisonment for that offence. They also included making a demand with a threat to kill for which the respondent had received a term of one year and nine months' imprisonment. We were told that, in relation to that matter, the respondent had approached a total stranger in the street, and demanded money from him.

14 In addition, the respondent had been convicted of various assaults, as well as possession of a controlled weapon (being a knife), and a number of drug offences and offences involving dishonesty. There were also other offences involving his having been found in possession of a knife. His most recent convictions, prior to the matter presently before this Court, were for trafficking in a drug of dependence, and for various dishonesty offences. On that last occasion, he received a total effective sentence of 18 months' imprisonment, with a non-parole period of 12 months.

15 It is clear from this summary that the respondent has an extensive criminal record. His convictions include a number of offences involving violence. Previous terms of imprisonment have not deterred him from re-offending.

16 The sentencing judge was also told that the respondent faced further charges, involving damage to property, to which he would be pleading guilty. Though these were not prior convictions, they were relevant when considering his prospects of rehabilitation.

17 All this suggests that the respondent has had, and continues to have, real difficulty exercising control over his actions. In particular, he seems to be prone to outbursts of anger, and significant violence.

18 Turning to the respondent's personal circumstances, he was born in Korea and came to this country in 1988. He subsequently obtained Australian citizenship. He has two brothers, and he is the middle child. His younger brother has had psychiatric and drug problems. His mother has been diagnosed with schizophrenia. His father died in 1988.

19 The respondent attended Debney Park Secondary College until Year 10. He then went to Bateman Tafe and completed a Certificate Level 1 in automotive engineering.

20 His medical history indicates that he has, in the past, been prescribed both Luvox, an anti-depressant, and Zyprexa, an anti-psychotic. He has also previously been prescribed other anti-psychotic drugs, and has, at times, reported auditory hallucinations. He began using cannabis at the age of 17, and graduated to the use of heroin a year or so later. He has also, in the past, used ecstasy on a monthly basis, and regularly used speed. There was evidence of his having attended at St Vincent's Hospital, primarily for treatment relating to his illicit drug use. That drug use, and in particular his use of methylamphetamine, also known as 'ice', may account for his paranoia, and may also explain the auditory hallucinations that he claims to have experienced.

21 In the opinion of Dr Danny Sullivan, a consultant psychiatrist who provided a report dated 22 September 2008, the respondent's behaviour on the day of the attack was consistent with a long history of impulsive, aggressive conduct, self-harm, mood disturbance and limited success in interpersonal relationships. Dr Sullivan could not form a concluded view regarding a diagnosis, but his opinion was that the respondent's prognosis was, on any view, poor.

22 Faced with Dr Sullivan's report, the sentencing judge expressed understandable concern as to the respondent's prospects of rehabilitation. She said that she was 'not optimistic' in that regard.

23 It was submitted on the plea before her Honour, that the respondent was a candidate for the application of the principles set out in R v Verdins.[1] However, the submission was put only in the most tentative way. Counsel expressly conceded that, even if Verdins was applicable, the extent to which that decision could be invoked in favour of his client was 'minimal'.

24 Dr Sullivan also gave oral evidence on the plea. The sentencing judge concluded, on the basis of that evidence, that the respondent's paranoia stemmed from his previous poly-substance abuse. She found that, because he no longer had access to illicit drugs in prison, his mental state had improved. She said:

Based on the material before me, if the principles in Verdins apply to you, it affects moderation of your sentence in only a minimal way.

25 The respondent's history indicated that he had never, at any stage, held regular employment. His counsel acknowledged that the respondent could be regarded as a typical drug user, and part-time trafficker. He conceded that his client's attack upon Martin called for a period of actual imprisonment, but submitted that the length of any such term should not shut out whatever prospects of rehabilitation the respondent might have.

26 In reply, it was submitted on behalf of the Crown on the plea, that the community needed to be protected from the respondent. Both his prior convictions, and the circumstances surrounding his attack on Martin, lent force to that submission. Her Honour was reminded that the maximum penalty for intentionally inflicting serious injury was 20 years' imprisonment. It was submitted that the respondent's conduct should be regarded as a grave example of that offence. In addition, given his prior convictions, he was to be sentenced as a serious violent offender.

27 In her sentencing remarks, her Honour observed that she was required, when sentencing the respondent, to have regard to the provisions of Part 2A of the Sentencing Act 1991. She was therefore obliged to treat the protection of the community as the principal purpose for which sentence was to be imposed. In addition, she had to take into account the need for deterrence, both general and specific. Finally, any sentence that was imposed had to reflect the denunciation felt by the community towards what the respondent had done.

28 Having noted that the gravity of the respondent's crime demanded a sentence of some substance, her Honour then sentenced him, as earlier indicated, to four years' imprisonment, with a non-parole period of two years and six months. She referred to s 6AAA of the Sentencing Act 1991. She said that, but for his plea of guilty, she would have sentenced him to five years and six months' imprisonment, with a non-parole period of four years.

29 By Notice of Appeal filed on 12 November 2008, the Director of Public Prosecutions attacks the adequacy of this sentence.

30 Ground 1 complains that the sentence was manifestly inadequate. Regrettably, the particulars provided in support of that ground are in what might be called 'the usual terms'. They are of little assistance in that regard.

31 Ground 2 asserted that, to the extent that her Honour had regard to 'current sentencing practices' in determining the length of the sentence to be imposed, those practices were themselves inadequate. That ground was expressly abandoned before us.

32 Dealing then with ground 1, it is clear that the respondent's attack upon his victim was, as her Honour correctly described it, a serious example of intentionally causing serious injury. The respondent inflicted a life threatening injury, which resulted in permanent scarring. It led to the loss of the victim's spleen. The offence was, as the Crown submitted, at the upper end of the range of seriousness for this particular crime.

33 Moreover, this was a vicious and cowardly attack upon a victim who, as her Honour found, had done nothing whatever to provoke it. It was committed by a man who had, in the past, frequently armed himself with knives when out and about in the community.

34 It is true that there was some basis, in the evidence, for a finding that, at the time of the incident, the respondent was affected by some form of drug-induced psychosis. However, her Honour made no such finding and was not obliged to do so. There was only the unsupported assertion by the respondent to Dr Sullivan that he had heard voices telling him to stab Martin, and that he had done what he was told.

35 In one sense, if what the respondent told Dr Sullivan was true, it exemplifies just how much of a risk he poses to other members of the community. Anyone accustomed, as the respondent was, to using drugs of a kind that can lead to paranoia, auditory hallucinations and sudden and unprovoked acts of violence, can hardly expect to be heard to invoke Verdins as the basis for moderating any punishment inflicted upon him. Sadly, the respondent's prospects of rehabilitation seem very poor.

36 In truth, there was little that could be said on the respondent's behalf. Probably, the only mitigating factor of any real significance was his plea of guilty. That had a utilitarian value, but provides little indication of genuine remorse.

37 As against that, the respondent had to be sentenced as a serious violent offender, pursuant to s 6F of the Sentencing Act 1991. That meant that the protection of the community had to be regarded as the principal factor in his sentence.

38 Before this Court, senior counsel submitted on behalf of the respondent that the sentencing judge had herself fallen into error by giving too little weight to the extent to which the respondent's moral culpability was reduced. The basis of that submission was that the respondent had done what he did only because he had been in a 'drug-induced psychosis'.

39 The difficulty with that submission is that it rests upon a slender foundation.

40 First, Dr Sullivan did not say that, in his opinion, any such psychosis explained the respondent's conduct. He merely recounted what the respondent had told him. As we have indicated, there was nothing, apart from the respondent's own account to support the existence of any such condition.

41 Secondly, the respondent plainly acted in a purposeful and rational manner, both immediately before the attack, and shortly thereafter. He had gone to the pharmacy to receive his methadone. There was nothing to indicate any untoward conduct on his part in that regard. After the stabbing, the respondent appears to have gone home, cleaned himself up, and washed the blood from his knife. When questioned by the police later that day, he was astute enough to answer some questions, and make no comment in relation to others.

42 Thirdly, there is a real question as to whether, as a matter of policy, a person experienced in the use of drugs, and who therefore must know their effect upon him, should be entitled to call in aid the moderating effect of Verdins in relation to reduced moral culpability. In that sense, the problem is not dissimilar to that which presents itself in relation to self-induced intoxication.

43 Fourthly, there is the concession made by counsel who appeared for the respondent on the plea. It ill-behoves the respondent now, in the light of that concession, to claim that Verdins was a significant factor, and should have been accorded greater weight, in reducing any sentence that might otherwise be appropriate.

44 In our opinion, the sentence imposed below failed to give proper weight to a number of critical sentencing considerations. These included the need to protect the community, a paramount matter, and the need for any sentence to achieve both general and specific deterrence. A sentence of four years' imprisonment falls well short, in our view, of meeting these objectives.

45 Although her Honour referred to all of these factors in her sentencing remarks, we are constrained to the view that both the sentence imposed, and the non-parole period, in no way reflected the gravity of this offence. In our opinion, the sentence was manifestly inadequate, so much so that it plainly reflected error in principle. We also think that the sentence was so disproportionate to the seriousness of the crime as to 'shock the public conscience'. [2] It follows that ground 1, has in our view, been made out.

46 We have already noted that ground 2 was, somewhat belatedly. abandoned. We should indicate that if, in future, any such ground is to be pursued, we would expect proper material to be placed before the Court in support thereof. That was not done in relation to this ground, prior to its having been abandoned.

47 The appeal should be allowed. Both the sentence of four years' imprisonment and the non-parole period of two years and six months should be set aside. In lieu thereof, the respondent should be sentenced to a term of six years' imprisonment with a non-parole period of four years.

48 We should say that, in arriving at that revised sentence, we have had regard to the principle of double jeopardy.

49 In addition, and for the avoidance of doubt, we should also say that, on the assumption s 6AAA of the Sentencing Act is applicable to this Court, we would, but for the respondent's plea of guilty, have imposed a sentence of eight years' imprisonment, with a non-parole period of six years.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] See generally R v Clarke [1996] VICSC 30; (1996) 2 VR 520, 522 (Charles JA).