Guo v The Queen [2020] VSCA 273

1 On 25 August 2020, the applicant, now aged 20 years,[1] pleaded guilty before a judge in the County Court to aggravated burglary,[2] and to a relevant summary charge of possessing a prohibited weapon.[3]

2 Following a plea, on 1 October 2020 the judge sentenced the applicant on both charges to an aggregate sentence of 12 months' detention in a youth justice centre.

3 The applicant sought leave to appeal against that sentence on five grounds.

4 Upon the hearing of the application for leave, it became clear that ground 5 had to succeed.[4] We thus made orders granting leave to appeal and allowing the appeal, and we resentenced the applicant in the manner set out below.[5] These are our reasons for making those orders.

1. The learned sentencing judge erred in the exercise of his discretion by imposing an aggregate sentence of detention pursuant to s 32A of the Sentencing Act 1991 because:

(i) the requirements of s 32A(1) of the Sentencing Act had not been satisfied;

(ii) the learned sentencing judge failed to comply with the requirements of s 32A(4) of the Sentencing Act;

(iii) the Applicant only fell to be sentenced for two offences;

(iv) one of the two offences for which the Applicant fell to be sentenced (namely, the 'related summary offence') was much less serious than the other offence for which the Applicant fell to be sentenced; and

(v) one of the two offences for which the Applicant fell to be sentenced was a 'related summary offence'.

6 Before turning to the merits of the application, it is necessary to summarise the applicant's offending. In order to do so, it is convenient to draw on the Summary of Prosecution Plea Opening, which was treated as an agreed statement of facts:

1. The [applicant] was 18 years old at the time of offending and resided at [an address in] West Melbourne. He is currently residing in Australia on a student visa.
2. The victim is Ailing Yan ... who was 29 years old at the time of offending. She arrived in Australia on 28 September 2018 as a tourist in the country. She was staying at apartment 4503/500 Elizabeth Street, Melbourne at the time of offending. She was not known to the [applicant].

Charge 1 - aggravated burglary - offensive weapon

1. At 11.30 pm on Friday 2 November 2018, the victim was in apartment 4503/500 Elizabeth Street Melbourne with two other women who were also staying there. Another friend of the victim, named Yi Qiao attended and invited the victim over to apartment 3709 to stay for the rest of the evening.
2. The victim agreed and took the apartment key from Qiao, and proceeded out of apartment 4503 and entered 3709 by herself. She waited for Qiao to return.
3. At 12.30 am on 3 November 2018, the intercom bell rang and, presuming is [sic] was Qiao returning to her apartment, the victim let the person in. Soon afterward, there was a knock on the door of apartment 3709.
4. The victim opened the door and saw an unknown Chinese male standing in the doorway. The victim asked the male:

1. Without warning the unknown Chinese male and several other men, including the [applicant], entered the apartment. At the time of entry, the [applicant] was in possession of a wooden baton, whilst one of the other males had a knife.
2. The victim was instructed to sit on the sofa, to which she complied.
3. One of the men then grabbed the victim's phone and began searching through the 'We Chat' application.
4. One of the men then asked the victim who was coming back to the apartment, to which the victim said her friend. A knife was produced and one of the men said:

1. Two more males then entered the apartment and ordered some of the others to search the apartment. Another two men arrived soon thereafter, with 10 males in total being inside the apartment. Some of them were wearing masks. All of the males were wearing gloves as they began searching the bedroom and wardrobes.
2. Whilst this was happening, one of the men managed to access the victim's bank account using the We Chat application on her phone. Between 1.21 am and 1.47 am three money transfers were made from the victim's bank account to other unknown bank accounts totalling $48,050 Chinese Yuan (approximately $10,000.00 Australian dollars).
3. Ultimately when one of the men asked the victim if she had any cash on her, she stated she had $10,000 in her apartment. This was an attempt to create a means for her to escape.
4. The victim was instructed to go to her apartment with one of the men, collect the money and meet them at the McDonald's restaurant across the street.
5. The group and the victim all exited apartment 3709 in pairs, with one of the males accompanying the victim to her apartment building.
6. The victim then told that male that her friend, being Qiao, was in her apartment and she needed to go upstairs alone. The male let her do so.
7. Upon entering the building, the victim ran up to her apartment and met up with Qiao who then called 000.

1. The Informant spoke to the victim and Qiao at 8.45 am later that morning. The victim was not able to describe the males other than one was wearing a leather jacket, and accompanied her out of the apartment.
2. CCTV footage was obtained from the building manager, which confirmed the victim's version of events regarding the men who entered the apartment being 10 Asian males.
3. A police circular was released in an attempt to identify as many of the group as possible.
4. On 7 November 2018, the [applicant] was nominated by Senior Constable Edward Roberts as one of the offenders. SC Roberts had spoken with the accused on 6 November 2018 at Docklands regarding an unrelated incident, and took a photo of him at the time. The [applicant] was wearing the same shoes that evening, as he did on 3 November 2018.

Arrest and search warrant, related summary offence - possess prohibited weapon without exemption (2 extendable batons)

1. At 7.00 am on Friday 30 November 2018 police executed a search warrant at the [applicant's] address, where he was arrested and taken into custody. Police seized various items in relation to the investigation.
2. Police also located 2 extendable batons on the kitchen island bench belonging to the accused.

1. At 8.49 am on 30 November 2018, the accused participated in a record of interview, during which he made the following admissions and/or statements:
   • he admitted attending that apartment and being part of the group which entered;
   • the woman in apartment 3709 sold herself for sex;
   • he called the woman and said he wanted sex in order for her to let him and the group into the building;
   • he nominated 7 other individuals he claims were part of the group involved in the aggravated burglary;
   • the group attended the apartment to confront the woman and/or her boss. They were after money for their friend who got a sexually transmitted disease and went back to China;
   • he asked the woman to call her boss to give them an explanation or pay money;
   • the victim transferred $10,000 Chinese Yuan on WeChat but the money transfer was cancelled;
   • the victim said she would bring them cash but she didn't come downstairs;
   • the victim was not the same female that gave his friend the sexually transmitted disease, but she worked for the same company;
   • he said his friend was holding a knife and he was carrying a wooden handle when they entered the apartment;
   • he paid $50 for the two batons, which he purchased off an associate named Zhun Zhao.

7 On the plea, counsel for the applicant submitted that a community correction order ('CCO') should be imposed on his client.

8 As it transpired, the judge sought two pre-sentence reports: first, from Corrections, as to the applicant's suitability for a CCO;[7] and, secondly, from Youth Justice, as to the applicant's suitability for a sentence of detention in a youth justice centre.[8]

9 The Community Corrections Officer who assessed the applicant's suitability for a CCO considered that he posed a 'low risk of re-offending'. Somewhat curiously, however, given the assessing officer's otherwise favourable conclusions, the officer assessed the applicant as being unsuitable for a CCO, the apparent rationale being that it was the applicant's low risk of recidivism that rendered him unsuitable. The assessing officer's reasons included the following:[9]

Mr Guo was forthcoming with information throughout the assessment and answered all questions put to him. ... Mr Guo [is] reported to be studying and is financially supported by his parents. Mr Guo confirmed he would have no issues co-managing commitments of education and that of a CCO.

Mr Guo indicated he would reside in West Melbourne with his partner, if afforded an opportunity to undertake a CCO. Mr Guo advised his partner is supportive and provides a positive influence. Mr Guo further advised of daily contact with his parents via video call. Mr Guo reported his parents are ashamed and disappointed with his behaviour however, remain supportive. When prompted to discuss peers, Mr Guo advised to have ceased contacts with peers during the operation period of the offending due to negative influences. Mr Guo reports to now socialise with positive peers from his partners social network.

When invited to discuss the offending behaviour, Mr Guo attributed his offending to socialising with negative peers. Mr Guo reported his peers had pressured him into offending and felt obliged to take part. Mr Guo reported to have offended shortly after immigrating from China, with a small social network in Melbourne. When prompted to discuss, Mr Guo reported of the negative impacts the offending would have on the victims and the trauma caused. Mr Guo stated he's very remorseful of his behaviour.

Whilst Mr Guo presents to this service with adequate willingness and capacity to undertake a CCO, due to his low risk of recidivism he's been found unsuitable for an order.

Prior to COVID-19, CCS would have recommend one condition of community work for low risk offender. ...

Furthermore, due to Mr Guo having been assessed as a low risk offender, a condition of offence specific program condition is respectfully not recommended. Mr Guo will be deemed not suitable for participation in any programs by the Forensic Intervention Service branch due to his low risk.

10 A very experienced youth justice worker, Mr Stephen Riordan, compiled a Youth Justice report, dated 28 September 2020. He deemed the applicant to be 'a suitable candidate to be placed in a Youth Justice Centre', albeit that he considered that consigning the applicant to custody in either a prison or a youth justice centre would have a 'negative and possibly lasting effect' on the applicant's prospects of rehabilitation. Mr Riordan said (among other things):

Mr Guo is a young man of 20 years of age who has pleaded guilty to his involvement in an Aggravated Burglary that occurred on 2/11/2018 when he was 18 years of age. Through no fault of his own the matter has taken some time to resolve into a plea. Mr Guo has no previous convictions, and prior to the commission of this offence was a person of good character. He is a Chinese national that has a basic grasp of the English language. The writer assessed him has having reasonable prospects for rehabilitation, as Mr Guo has not engaged in criminal activity in the past and has admitted his guilt in regard to these offences. He has aspirations of obtaining higher learning qualifications by attaining his Bachelor of Business and ultimately his Masters in Business. The regime of the Youth Justice Centre Order was explained to him and whilst he is extremely anxious about being incarcerated in any custodial facility, he would prefer to be placed in a youth justice centre over an adult prison.

In regard to the remaining criteria, Mr Guo's maturity appeared to be age appropriate for a 20 year old but this was difficult to establish due to the language and cultural differences. It is the writer's opinion that if Mr Guo were to be placed in custody, either in an adult jail or a youth justice centre, that Mr Guo would have difficulty navigating a custodial setting. He will be an impressionable first timer who will be totally unaware of the accepted behavioural norms usually associated with custodial facilities. It is highly probable he would come to the attention of some of the more unscrupulous and experienced prisoners and possibly be harassed, ridiculed and stood-over on a regular basis. Conversely, Mr Guo may feel the need to assimilate with the other prisoners and in order to achieve that objective he may copy some undesirable prison behaviours to gain acceptance from the mainstream population. Clearly, this scenario would not support the prospects of Mr Guo's overall rehabilitation, rather it would have a negative and possibly lasting effect.

11 The judge, as we have mentioned, imposed an aggregate sentence of 12 months' detention in a youth justice centre on both the indictable and the summary charge.[10] He was wrong to have done so. As we will explain, in the circumstances of this case s 32A of the Sentencing Act 1991 ('the Act') simply did not permit the judge to impose an aggregate sentence of detention. Thus, the sentence imposed was not in accordance with law, and must be set aside.

12 In his reasons for imposing the aggregate sentence of detention, the judge remarked that the maximum penalty provided for aggravated burglary 'discriminates the crime as inherently serious', and the applicant's crime was 'objectively serious'. Although there 'may have been two major organisers' of the offence who were older than the applicant, he was very 'a willing participant in the enterprise'. The principles that guide the sentencing court are as set out in Hogarth,[11] Meyers[12] and Maslen.[13]

13 The judge said that he 'adopted' the principles in Mills,[14] and 'accepted' the principles in Doran.[15] He also acknowledged that the applicant had no prior criminal history, and that he had received a favourable report under s 32 of the Act. Further, citing Guden,[16] the judge acknowledged the risk of the applicant being deported; and he referred to the requirement - a consequence of the current pandemic - that the applicant be isolated if detained in custody. Additionally, the judge accepted that the applicant was entitled to a 'discount' for his guilty plea, both because it had utilitarian value and it demonstrated remorse.

14 Ultimately, the judge rejected the contention that a community correction order was appropriate, given

the seriousness of this offence and the aggravation surrounding it, and balancing all other factors I have concluded that there is no other sentence appropriate, but for a sentence involving confinement.

15 In support of ground 5, the applicant's counsel submitted that discrete sentencing error was demonstrated by the imposition of an aggregate sentence, in purported compliance with s 32A of the Act. The relevant summary offence in this case was not, as is required by s 32A(1), 'founded on the same facts' as the offence of aggravated burglary, and did not form part of a series of offences of the same or similar character.[17] Thus, it is clear that the two extendable batons located by police in a search of the applicant's premises on 30 November 2018 had no connection to the aggravated burglary committed four weeks earlier.

16 Counsel for the respondent fairly conceded that the aggravated burglary charge and the weapons charge were not founded on the same facts, and did not form part of a series of offences of the same or similar character. As a result, s 32A of the Act did not authorise the imposition of an aggregate sentence of detention. Counsel submitted, however, that the serious nature of the applicant's offending otherwise justified a sentence of detention under s 32.

17 As we have said, it is clear that ground 5 must succeed, and that the sentencing discretion has been reopened. That being so, it is strictly unnecessary to consider whether the sentence first imposed was manifestly excessive.

18 We note, however, that counsel for the applicant submitted that, given that the applicant was 18 years old at the time of the offence and 20 at the time of sentence, the principles outlined in Mills were relevant, so that rehabilitation was far more important in this case than general deterrence. The applicant was a 'young offender' within the meaning of s 3(1) of the Act. He was also a first offender, without prior convictions and of positive good character.

19 Counsel submitted that the applicant's admissions to police gave rise to much of the case against him. He had admitted far more than the prosecution could have proven against him, this being in the context that the complainant had left the jurisdiction and returned to China, and had ceased contact with the police. The principles in Doran were thus applicable.

20 Further, the assistance that the applicant gave to police was reinforced by this plea of guilty, which was entered early and on the basis that the applicant would provide evidence against others. Counsel submitted that the applicant was entitled to a significant discount not only for entering a guilty plea, but doing so when he knew the victim was overseas. He was also entitled to a significant discount for the full confession he made at interview, as well as for agreeing to give evidence against others, if required.

21 Counsel submitted that the sentencing judge accepted that the applicant had become involved in the offence due to the negative influence of associates with whom he had become friendly, having left China and arrived in Victoria isolated and alone. His lack of maturity was also relevant to his culpability.

22 Furthermore, the Youth Justice report made it clear that confinement in either a prison or a youth justice centre would have a deleterious effect on the applicant's rehabilitation. A sentence that did not involve confinement would meet all relevant sentencing criteria.

23 So far as relevant, s 32A of the Act provides:

32A Aggregate sentence of detention

(1) This section applies if a young offender is convicted by a court of 2 or more offences which -

(a) are founded on the same facts; or

(b) form, or are part of, a series of offences of the same or a similar character.

(2) The court may impose an aggregate sentence of detention in respect of those offences in place of a separate sentence of detention in respect of all or any 2 or more of them.

...

(4) If the court proposes to impose an aggregate sentence of detention it must, before doing so, announce in open court, in language likely to be readily understood by the young offender -

(a) the decision to impose an aggregate sentence and the reasons for doing so; and

(b) the effect of the proposed aggregate sentence.

...

24 It is clear that the extendable batons found in the applicant's possession had not been used in commission of the aggravated burglary, and had no other connection with it. The offence of aggravated burglary and the offence of possessing prohibited weapons thus could neither be said to be founded on the same facts, nor be characterised as offences which formed, or were part of, a series of offences of the same or a similar character. Section 32A therefore did not permit the judge to impose an aggregate sentence of detention. That being so, it was necessary to set the sentence aside.

25 Additionally, although nothing turns on it, we would note that an aggregate sentence is not suitable when sentencing on a small number of charges.[18] Further, it also appears in this case that the technical requirements in s 32A(4) were not met.

26 In resentencing, we have had regard to: the applicant's youth; his previous good character and lack of prior convictions; the fact that the aggravated burglary, although serious, appears to have been an aberration borne of peer pressure; the applicant's full confession and other co-operation with police, including his willingness to provide evidence against others; his remorse; the applicant's pleas of guilty; and the fact that he has already been punished by confinement, having spent a month in detention to this point.

27 We have also been influenced by the reports that were before the sentencing judge, both of which bear on the applicant's prospects of rehabilitation. As we have noted, the applicant was assessed as unsuitable for a CCO solely - and, it might be thought, paradoxically - on the basis that he posed a low risk of recidivism.

28 Moreover, the Youth Justice report made it clear that, as 'an impressionable first-timer', it is 'highly probable [that the applicant] would come to the attention of some of the more unscrupulous and experienced prisoners and possibly be harassed, ridiculed and stood-over on a regular basis', or 'may feel the need to assimilate with the other prisoners, and in order to achieve that objective he may copy some undesirable prison behaviours to gain acceptance from the mainstream population'. In Mr Riordan's opinion, 'this scenario would not support the prospects of [the applicant's] overall rehabilitation, rather it would have a negative and possibly lasting effect'.

29 Ultimately, we concluded that, in light of the applicant's prospects of rehabilitation - and notwithstanding the seriousness of his offending - a sentence involving his further confinement was not called for. As to that, we consider that the observations of Sir John Young in Chmil bear repetition:[19]

I think it should be remembered that in the long run the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal.

30 In light of the foregoing, at the conclusion of the hearing in this Court on 29 October 2020, we granted leave to appeal against sentence; allowed the appeal; and set aside the orders in the County Court. Having informed counsel of our intention to do so, and having invited submissions as to the proposed course, we announced that on the charge of aggravated burglary we would sentence the appellant to 28 days' detention in a youth justice centre - time already served - to be followed upon his release from detention by a conditioned CCO of 12 months' duration. On the summary charge, we announced that we would convict and discharge the appellant.[20]

31 The following day, however, we were informed by the appellant's counsel that their further researches had revealed that it was not possible to combine a period of detention in a youth justice centre with a CCO.[21] Very sensibly and fairly, counsel at both ends of the Bar table agreed that the Court could exercise the powers available to it under s 104B of the Act. We thus imposed a CCO of 12 months' duration on the charge of aggravated burglary.

[1] His date of birth is 26 January 2000.

[2] Crimes Act 1958, s 77. The maximum penalty is 25 years' imprisonment.

[3] Control of Weapons Act 1990, s 5AA. The maximum penalty is 240 penalty units or imprisonment for 2 years.

[4] Leave was sought to add ground 5, it not having been included originally in the notice of application for leave to appeal.

1. The Learned Judge fell into error under section 5(4) of the Sentencing Act 1991 in determining that confinement was the only means to fulfil the purpose of the sentence on the Applicant when it was not.

2. The Learned Judge fell into error in determining the seriousness of this particular offence outweighed the principles in sentencing a young offender within the Sentencing Act and those derived from Mills.

3. The Learned Judge failed to give appropriate weight to the Applicant's admissions pursuant to Doran and further to his acceptance to assist the prosecution in prosecuting others

4. In all the circumstances, the sentence imposed was manifestly excessive.

It will be appreciated that grounds 1, 2 and 3 appear to be 'particulars' of the fourth ground.

[7] See Sentencing Act 1991, s 37(1)(b).

[8] See Sentencing Act 1991, s 32(1).

[10] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to three years' imprisonment, with a non-parole period of 20 months.

[11] Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.

[12] DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486.

[13] Maslen v The Queen [2018] VSCA 90.

[14] R v Mills [1998] 4 VR 235.

[15] R v Doran [2005] VSCA 271.

[16] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288.

[17] See Fitzpatrick v The Queen [2016] VSCA 63, [50].

[19] Attorney-General v Chmil (Unreported, Victorian Court of Criminal Appeal, Young CJ, McInerney and Jenkinson JJ, 1 August 1977).

[20] We declared 28 days' pre-sentence detention as having been served; and, pursuant to s 6AAA of the Act, that, but for the plea of guilty, we would have sentenced the appellant to 12 months' detention in a youth justice centre.

[21] See Sentencing Act 1991, s 44(1). See also Scammell v The Queen (2015) 72 MVR 56, 62 [20]; Bradshaw v The Queen [2017] VSCA 273; (2017) 269 A Crim R 67, 81-2 [54].