Jiang v The Queen [2019] VSCA 126

1 Zhen Jiang, now aged 50,[1] seeks leave to appeal against a total effective sentence of two years and six months' imprisonment, with a non-parole period of one year and two months, imposed upon him in the County Court on 19 December 2018 for aggravated burglary and common assault, contending that the sentence is manifestly excessive.

3 For the reasons that follow, we would grant leave to appeal against the sentence; allow the appeal; and sentence the applicant to a community correction order ('CCO') of two years' duration.

4 The total effective sentence and non-parole period were imposed as follows.

5 An indictment filed in the County Court charged the applicant with aggravated burglary[2] (one charge - charge 1) and common assault[3] (two charges - charges 2 and 3). He pleaded guilty; and, notwithstanding the prosecution's concession that a CCO was an available disposition, the judge sentenced the applicant to be imprisoned for two years and two months on the charge of aggravated burglary, and to 10 months' and eight months' imprisonment respectively on the charges of common assault. Two months each of the sentences of imprisonment on the second and third charges were ordered to be served cumulatively with the sentence on the first, resulting in a total effective sentence of two years and six months' imprisonment. The judge fixed a non-parole period of one year and two months.[4]

6 At the time of his offending, the applicant was the proprietor of a Chinese restaurant in a north-western Melbourne suburb. Paul Siciliano, then aged 50, and his daughter, Amanda Rizzo, were working in their family pizza shop in premises next door to the applicant's restaurant. Salvatore Rizzo, Mr Siciliano's son, managed the pizza shop.

7 On Sunday 29 July 2017, at about 8.50 pm, the applicant noticed that some tables from the pizza shop had been placed in front of a side door to his restaurant. He approached Amanda Rizzo, who was sitting at the front of the pizza shop taking a break. He told her to move the tables. Ms Rizzo said she would ask her brothers to move them. She went back into the pizza shop and spoke to Salvatore Rizzo, who had overheard the conversation with the applicant.

8 Salvatore Rizzo had moved the tables to their position earlier in the evening to protect them from rain, being under the impression that the applicant did not use the side door. Apparently he had put tables there on previous occasions without complaint from the applicant. When Ms Rizzo spoke to him, he was serving customers, and said that he would move the tables as soon as he was free.

9 Shortly afterwards, the applicant came into the pizza shop, pointed at Mr Rizzo and loudly said, 'move tables'. Mr Rizzo said he was busy and would move them in a minute. The applicant replied, 'fuck you', and walked out.

10 A few minutes later, Mr Rizzo told Mr Siciliano of his conversation with the applicant. Mr Siciliano said he would move the tables. He walked out of the pizza shop and saw the applicant. Mr Siciliano asked the applicant why he had spoken so rudely to his daughter, prompting the reply, 'I don't give a fuck'. Rather than avoid further confrontation, Mr Siciliano said, 'Well fuck you'. The applicant then either grabbed Mr Siciliano by the neck or pushed him. Mr Siciliano retaliated by grabbing the applicant on the shoulder and punching the applicant repeatedly with his left fist. Salvatore Rizzo then emerged from the pizza shop and separated Mr Siciliano and the applicant, pushing the applicant away. The applicant then returned to his restaurant and Mr Rizzo ushered Mr Siciliano into the pizza shop.

11 Ten seconds or so later, the applicant ran into the pizza shop holding a meat cleaver, closely followed by his wife who was trying to stop him (charge 1 - aggravated burglary). The applicant ran behind the counter towards Mr Siciliano (charge 2 - common assault), who picked up a metal grate from the pizza bar counter and struck the applicant on the elbow (causing an injury which required surgical repair). Mr Siciliano used the grate to push the applicant backwards. One of the pizza shop employees took the grate from him. Mr Siciliano then pushed his shoulder against the applicant, trying to take possession of the meat cleaver.

12 Salvatore and Amanda Rizzo also tried to grab the cleaver. Ms Rizzo received a small cut from the cleaver in the struggle and fell to the floor (charge 3 - common assault). Mr Rizzo held the applicant's wrists, while Amanda Rizzo, who had gotten up, punched the applicant repeatedly to the face. The applicant then, overwhelmed by superior numbers, released his grip on the cleaver and Mr Rizzo took it from him. Thereafter, the applicant's wife successfully pushed the applicant out of the pizza shop.

13 The applicant and Amanda Rizzo each telephoned the police. In response, police arrived shortly afterwards and arrested the applicant. They obtained CCTV footage of what had occurred, the footage later being viewed by the sentencing judge (and, for the purposes of the present application, by this Court).

14 The victims chose not to make victim impact statements. It appears, however, that Mr Siciliano received minor cuts to his hand and a scratch to the side of his face, and Amanda Rizzo sustained a small cut to her hand (Salvatore Rizzo being physically uninjured). The applicant was taken by ambulance to hospital. He had suffered a deep wound to his left elbow and had facial swelling and abrasions.

15 The applicant was interviewed and charged on 18 August 2017, and the matter swiftly resolved into a guilty plea at a committal case conference on 27 November 2017. On 29 August 2018, the applicant pleaded guilty in the County Court.

16 On the plea, counsel for the applicant sought the imposition of a CCO, submitting that the applicant's conduct was completely out of character. Counsel submitted that the circumstances of the first charge represent a highly unusual example of aggravated burglary. The offence, counsel submitted, was committed in the context of a very poorly handled dispute over a relatively minor issue, the applicant's conduct being an unplanned, spontaneous response to having been insulted and struck to the face by Mr Siciliano. It was accepted, however, that the applicant's response was 'disproportionate and inappropriate'.

17 In mitigation, counsel for the applicant submitted that it was relevant that the applicant was himself seriously injured, so much representing extra-curial punishment.[5] The applicant had to undergo surgery and spent six days in hospital; and has a permanent injury to his left arm (which is an ongoing reminder of the incident and a personal deterrent). He is unable to touch his left shoulder with his left hand, and is unable to sleep on his left hand side. It is likely that he will have to undergo further surgery to repair the injury.

18 Further, counsel submitted, the applicant had pleaded guilty early and made admissions to police. He consented to an intervention order (with which he has complied), and had continued to operate his business next to the pizza shop without further incident. The applicant has no prior or subsequent convictions and is otherwise of excellent character. He is a regular contributor to sporting associations and charities in his community, and has contributed to the community for over 30 years. The applicant is extremely hard working, having four employees and working up to seven days per week. Counsel submitted that the offending was aberrant behaviour in an otherwise unblemished life. The applicant has excellent prospects of rehabilitation.

19 At the time of the plea, the applicant was aged 49 years. He was born in China and emigrated to Australia aged 19. His wife suffers from agoraphobia and depression. They have been married for 27 years, and have two adult sons (one of whom works in the restaurant). He has operated the restaurant since 1997, at one location or another, and it has been very successful.

20 The prosecutor submitted that a CCO - unaccompanied by any period of imprisonment - was within the range of sentences properly open. Hence, when asked by the judge what the Director's 'stance' was, the prosecutor said:

My instructions are that a community corrections [sic] order would be within the range were it of sufficient onerousness or punitive value to reflect the seriousness of the offending. A financial penalty would be insufficient. ... But the Crown does not submit that a term of imprisonment is required either by itself or in combination with a community corrections [sic] order.

21 As will be seen, notwithstanding the stance adopted by the prosecution on the plea, counsel for the respondent in this Court submitted in writing that it could not be said that by imposing a period of imprisonment the judge's sentencing discretion miscarried as to either the type of sentence imposed or the length of the sentence of imprisonment. Counsel for the respondent also submitted in writing that the sentences imposed on each of the three charges; the orders for cumulation; and the non-parole period fixed, are within range.[6]

22 The judge had the applicant assessed for a CCO. Unsurprisingly, he was assessed as being suitable.

23 His Honour also sought a report from Forensicare. In the resulting report, prepared 4 December 2018, Dr Poppy Edwards, Acting Senior Forensic Psychologist expressed the following opinion:

Based on the present combination of protective markers and risk factors identified, Mr Jiang is considered to be in the low category of risk for violent re-offending. This means that he is in a category of risk that is lower than the average violent offender and will require a low level of supervision and resources to address this risk.

Mr Jiang possessed a greater number of changeable or dynamic risk factors (relative to static or historical risk factors) suggesting that whilst the likelihood of violent re-offending is low, his violence risk is particularly sensitive to fluctuation dependent on the situational context. To moderate the potential for escalating risk, it will therefore be important to monitor Mr Jiang's interactions and emotional reactions (including the emergence of violent ideation) through community supervision, especially whilst he remains in close proximity to victims. It is recommended that Mr Jiang resume therapy to develop his emotional functioning and improve self-regulation, as well as develop interpersonal and intrapsychic (i.e., self-awareness/reflection) capacities. He may make more progress should he be able to engage with a therapist who shares his cultural background and can converse in his first language. Should Mr Jiang receive a prison sentence he may be vulnerable, for example to exploitation and exposure to potentially distressing antisocial behaviour that has not been a predominant feature of his life.

24 In his sentencing remarks, the judge said that he took into account the applicant's plea of guilty - entered at the earliest opportunity - and his cooperation with police (including making 'damaging admissions').

25 Although the applicant pleaded guilty at an early stage, however, the judge did not think that implied remorse. In so concluding, the judge referred to the applicant's account to the author of a Forensicare report and to police in the record of interview, in which the applicant advanced the 'fiction' that he was the victim. His Honour said:

You are displaying some very modest remorse here and I take that into account. It is actually surprising that you are not fully remorseful. You have seen the [CCTV] footage. [Eighteen] months have passed. The emotion of the moment has well and truly subsided. You know what you have done. Yet you are not fully remorseful at all. So there is not much remorse here at all. It is actually quite disturbing that you still have this mindset.

26 The judge said that 'ultimately' he was prepared to conclude that the applicant has 'very good prospects of rehabilitation and a low risk of offending in this way again'. His Honour also said that he had regard to the injuries that the applicant sustained. As to the submission concerning the applicant's possible vulnerability in prison, the judge said:

That is all it is, a possibility. Maybe you will be vulnerable, maybe you will not, but I take into account that a prison term will be your first such experience. It won't be easy for you and I do take that into account.

27 His Honour said that he 'simply [did] not agree' with the defence submission that the aggravated burglary 'fell towards the lower level of offence seriousness', stating that the applicant's conduct 'was quite incredible' and that the offence was 'well above the lowest examples of the offence of aggravated burglary'. Although the judge thought that he could 'significantly moderate' specific deterrence and community protection given his 'very favourable views as to [the applicant's] future prospects and the low risk of re-offence', he stated that general deterrence was 'a different proposition altogether'. The judge said:

This court must send a clear message to other individuals in the community who might be minded to commit this sort of serious and illegal entry into another person's premises. Whether residential or commercial premises, this sort of conduct will not be tolerated by the courts and will almost inevitably be met with a sizeable term of imprisonment. That is because of the serious nature of aggravated burglary, a fact which has been spelt out by the Court of Appeal on so many occasions over the last decade.

28 Given that they explain the judge's reasons for rejecting the joint position that a CCO was appropriate, we set the following parts of the sentencing remarks out in full:[7]

Sending any person to prison is always a matter of last resort for any court. It is clear that a court must not confine anyone unless the purposes for which sentence is imposed cannot be achieved by a community correction order. [The applicant's counsel] submitted that the purposes could be achieved here by a suitably conditioned community corrections order. The Director of Public Prosecutions of this State accepts that is so.

It is obvious that not every offender for every crime can be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order.

I have had you assessed for your suitability for a community corrections order. I told you that you should not take any comfort from my calling for that report. I told you that I was considering my position as to whether prison was called for here and if so, the dimensions of any such term and whether they would even permit consideration of a community corrections order in combination. You are judged to be suitable for a community corrections order and you are assessed as having a low risk of re-offending_. I am not surprised by your suitability for the order or your low risk. Again though, your being judged suitable for such an order is not the end of my task_.

Is it actually open to me to place you on such an order in the sound exercise of my sentencing discretion?

Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order. So a court must pay careful attention to the purposes for which sentence is to be imposed and whether they can actually be achieved by a stand-alone community corrections order. There are some crimes of course that are just too serious.

The Court of Appeal in the case of Boulton[[8]] that you may recall was discussed suggested that judges ask the following question:

Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?

I have no doubt that this question must be answered in the positive. Here I regret to say, there are features of your offending which simply demand a term of imprisonment, not just a term of imprisonment but a sizeable term. This was serious offending. I do not even believe it is open to impose a combination type order here. There has been no pre-sentence detention so there is a ceiling of 12 months in terms of any prison component. Again your offending is too serious. Such an order would not achieve the purposes of sentencing in my view. One important purpose in this case of course is general deterrence. I believe that I am left with no option but to impose a significant prison term and then to fix a non-parole period. Your offending is just too serious.

29 Counsel for the applicant in this Court submitted that general deterrence did not demand the imposition of sentences of the kind or order imposed.[9] Both the prosecution and the applicant made 'well-founded' submissions to the effect that the purposes for which the sentence was to be imposed could be achieved by a sentence that did not require the applicant to be imprisoned. Essentially recapitulating the matters advanced on the plea, counsel submitted that the sentence imposed in the County Court was manifestly excessive, arguing that instead a CCO was the appropriate disposition.

30 As we have indicated, despite the position taken by the Director on the plea, the respondent's counsel submitted in writing that the sentence was not manifestly excessive. The submission was as follows:

The Crown position on sentence on the plea was expressed in the following terms: that a community correction order was 'within the range were it of sufficient onerousness or punitive value to reflect the seriousness of the offending'; that 'a properly constructed community correction order could address all the sentencing principles to satisfactory level'; and 'that an onerous community correction order is open to the court'. This was, perhaps, a merciful concession for this offending. The submission should not be interpreted as intending to convey that a sentence of imprisonment was outside the available sentencing range for the offending. Further, as his Honour said in his sentencing remarks, the Crown submission was something to which he had regard, but he had to exercise his own sentencing discretion.

In oral submissions, however, although counsel for the respondent maintained the position that a sentence of imprisonment was appropriate, he conceded - realistically - that the length of the sentence imposed was manifestly excessive.

31 We have no hesitation in concluding that the sentence imposed in this case is manifestly excessive.

32 The principles guiding the resolution of an application such as this were summarised in Leimonitis:[10]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[11] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[12] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[13] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[14]

33 It is plain, in our view, that the applicant - a hard-working man of previously unblemished character - acted in the heat of anger, after having been subjected to a degree of provocation by those concerned with the neighbouring business. Save that in the space of a few seconds he obtained the meat cleaver, the applicant's offending was not premeditated. And although his actions in entering the pizza shop and brandishing the meat cleaver cannot in any sense be condoned, the circumstances of the aggravated burglary were far removed from the unfortunately typical cases of aggravated burglary usually confronting this Court. On its face, the action of the applicant - entering the neighbouring shop armed with a meat cleaver, with the intention to assault a person with it - is, without more, serious offending. That conduct must, however, be seen in perspective. His actions, after he entered the shop, did not readily bespeak any ongoing intent to cause harm with the cleaver. The only offences, with which the applicant was charged, arising out of his conduct within the shop, were the two charges of common assault to which we have referred. The applicant was outnumbered, and overwhelmed, by the owners of the shop, two of whom were demonstrably larger and stronger than him. So much is plain when - as we have done - the CCTV footage is viewed in its entirety. Indeed, the circumstances of the applicant and his offending brought to mind what Starke J some years ago wisely observed in Okutgen (with the concurrence of Crockett and O'Bryan JJ), those observations aptly being capable of adaption to the present case:[15]

The first and basic matter that affects my mind ... is the fact that the applicant has reached maturity - and indeed, perhaps one might say middle age - without any breach of the law at all, that he has lived a decent, honourable life, that he has raised a family, that he has been in constant work while he could work and that he has engaged in community activities, particularly in respect of the migrant community. A man of this age, when first convicted, can I think call in aid his character and is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up till the moment of conviction. Indeed, under old legislation provisions suggested a first offender should not be imprisoned unless there were special circumstances. I admit, of course, there are many qualifications to that principle. But in this case, added to his good character is the additional fact that, whether it was his fault or whether it was not, I think, is beside the point; he obviously acted in anger and had some justification for that anger. It was not in any sense a premeditated action. In all those circumstances it seems to me that to condemn a man of exemplary character to prison for a substantial period of time is an exercise of undue severity. It is not irrelevant to remember that a man of this sort, perhaps particularly a migrant, although one considers it with shame in this community, being thrown amongst hardened criminals in Pentridge or some other gaol will necessarily do his time very hard, and the punishment to him is considerably greater than that of a hardened criminal. He has already experienced some weeks in gaol - I think five or six - the memory of which, no doubt, will stay with him for the rest of his life. In his case special deterrence, I think, is a matter which should not weigh very highly at all. General deterrence is a matter that really has to be considered in imposing a proper sentence. Probably the impact of general deterrence in a case where a man has acted in the heat of the moment is not as relevant as it may be in the case of a premeditated violent crime. With due respect to the learned judge, in my opinion, his discretion miscarried in that, if he attached any weight to the good character of the applicant, and he certainly meant to, I do not think that he attached sufficient weight to it. It therefore becomes appropriate and, indeed, necessary that this Court should determine the appropriate sentence for itself.

I do not think in this case for the reasons I have endeavoured to give that a custodial sentence is called for either from the point of view of the applicant or the point of view of the community ...

34 Moreover, the applicant himself suffered serious injuries in the altercation with those concerned with the pizza shop, causing ongoing pain and restriction of movement. The injuries, and the ongoing pain and restriction of movement associated with them, thus serve as a constant reminder of his offending. They must fairly be regarded as constituting some punishment for that criminality,[16] and as operating as a form of personal deterrent.

35 With due respect to the sentencing judge, we cannot accept his view that the applicant's offending demanded a term of imprisonment of 'a sizeable term', or that the applicable purposes of sentencing would not be met by the imposition of a CCO. Rather than having 'no option but to impose a significant prison term and then to fix a non-parole period', in our opinion it was not open to the judge to impose the sentence that he did. Given the circumstances attending the applicant's offending, principles of general deterrence, just punishment and denunciation did not dictate the imposition of a sentence of the kind, or of the length, imposed. Furthermore, given the applicant's previous good character, his background and his low risk of re-offending, the applicant's prospects of rehabilitation were such that specific deterrence and community protection were of little significance to the exercise of the sentencing discretion.

36 This was a case, in our view, that called for the imposition of a CCO, albeit with a significant punitive element (including a considerable component of community work) so as to reflect the need for general deterrence and denunciation. The best interests of the community and the applicant demanded as much.[17] We consider that the sentence imposed by the judge simply was not open in the sound exercise of discretion. It is manifestly excessive.

37 For those reasons, the application for leave to appeal against sentence must be granted and the appeal allowed. The sentence imposed by the County Court must be set aside. On each charge we would instead sentence the appellant with conviction to a CCO of two years' duration. The author of an assessment report prepared at the Court's request deemed the applicant suitable for a CCO, and observed (among other things):

[The applicant] stated that since he had completed an anger management program, he understands the need to keep his temper and emotions in check. He stated that he had normally kept control but stated he had never been involved in a confrontation like this before.

When further discussing how [the applicant] would address his criminogenic risks and needs, he said he will abide by the conditions of his intervention order. [The applicant] stated that another motivating factor for him not to re-offend was the mental health of his wife. He said that he needs to be with her and support her and that her mental health has deteriorated since his time in custody.

38 Given that the appellant has already effectively been punished by having spent more than five months in custody, we would not attach any conditions to the CCO other than the compulsory conditions[18] and a supervision condition.[19] We wish to make clear, however, that were it not for the fact that the appellant has already been significantly punished by having spent several months in custody, it would have been necessary for substantially punitive conditions to have been attached to any CCO imposed upon him in order to satisfy the dictates of general deterrence.

[1] His date of birth is 15 February 1969.

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

[3] Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is five years' imprisonment.

[4] 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 four years and six months' imprisonment, with a non-parole period of three years.

[5] Citing R v Barci (1994) 76 A Crim R 103 ('Barci').

[8] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 ('Boulton').

[9] Counsel cited Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[10] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).

[11] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].

[12] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[14] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].

[15] R v Okutgen (1982) 8 A Crim R 262, 265-6.

[18] See Sentencing Act 1991, s 45.

[19] See ss 47 and 48E.