Mun v R

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/346130 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 05 June 2014 Before: Frearson DCJ File Number(s): 2013/346130

Judgment

1. GLEESON JA: The applicant, Steven Mun, seeks leave to appeal against a sentence imposed upon him in the District Court by Frearson DCJ on 5 June 2014.
2. On 11 March 2014, the applicant pleaded guilty to a single offence of armed robbery with wounding contrary to s 98 of the Crimes Act 1900 (NSW), namely: That Steven MUN on the 15th day of November 2013, at SYDNEY, in the State of New South Wales, did rob Sang Ki KANG of certain property, to wit, a beige handbag containing $7000 cash, the property of Sang Ki KANG and immediately before did wound the said Sang Ki KANG whilst being then armed with an offensive instrument, to wit, a claw hammer.
3. The maximum penalty for an offence contrary to s 98 of the Crimes Act is 25 years imprisonment. A standard non-parole period of 7 years is prescribed.
4. The sentence imposed by his Honour was 7 years to commence on 15 November 2013, with a non-parole period of 4 years commencing on the same date and expiring on 14 November 2017.
5. The proposed grounds of appeal are that his Honour wrongly found there was no evidence of contrition and that the sentence is manifestly excessive.

Relevant facts

1. The applicant did not give evidence on the sentencing hearing. His Honour proceeded upon the basis of a statement of agreed facts. In outline, the circumstances of the offending were as follows.
2. At about 2.50pm on 15 November 2013, the applicant entered the Interville Technology Café in World Square Sydney and purchased an hour of internet access. About an hour later he purchased another hour of access, and at 4.30pm he purchased a further 3 hours access. He was described by a witness as behaving normally during this period.
3. At about 7pm, the victim, Mr Kang (the proprietor of the money exchange section of the café), prepared the cash takings in preparation for closing up. He put around $7000 in a shoulder bag. The applicant got up and put on a pair of gloves. He followed the complainant out of the café and without making any demand repeatedly struck him on the head with a claw hammer. The applicant took the bag and ran out of the store. He was pursued by several bystanders and apprehended a short distance away.
4. Police arrived shortly afterwards and arrested and cautioned the applicant. When asked where the hammer was, the applicant replied "It's in the store still". Police found the hammer lying on the ground inside the café near the door.
5. The victim sustained wounds to his head that required suturing with staples, swelling to the jaw and multiple bruises.
6. When police examined the applicant's mobile phone, they found a series of text messages from 2.50pm onwards that indicated that the applicant was lying in wait for the victim and had an accomplice. The co-offender was not apprehended.

Proceedings on sentence

1. At the time of the sentence, the applicant had been in custody for nearly 7 months (since his arrest on 15 November 2013). The applicant was aged 18 at the time of the offence, was aged 19 at the time of sentence and is presently aged 20 years.
2. The materials before the sentencing judge included a pre-sentence report from Community Corrections and a psychologist's report from Ms Johnson.
3. The pre-sentence report outlined the applicant's family and social circumstances. The applicant grew up in a family afflicted by domestic violence and his parents separated when he was about 10 years old. He had started using alcohol, cannabis and ice at the age of 15. The applicant attended High School until the middle of year 11, when he began a welding course at TAFE. Mr Mun was halfway through his third year of his four year TAFE course at the time of the offending. He told the author of the pre-sentence report that he had left his employment with an engineering firm approximately one month before the offence. He claimed that he was at the stage of either "resign or be fired" owing to his lack of reliability, which he attributed mainly as a result of his illicit drug use.
4. The pre-sentence report noted (at page 2) under the heading "Attitude to the offending" that the applicant stated that he had no income, had run out of money and planned the robbery. The report further noted that the applicant stated that "he 'feels bad' for the victim and was relieved he did not receive more serious injuries". The report concluded (at page 3) under the heading "Assessment" that "whilst [the applicant] has expressed his relief the victim did not suffer a more dire outcome, it is a point of disquiet he did not think of consequences beforehand".
5. The psychologist's report stated that the applicant: has shown considerable contrition regarding his actions and is highly motivated to turn his life around once released. He has reported feeling embarrassed and foolish at his actions and is aware he will need to work hard in the future to regain the trust of his family and girlfriend.
6. Before the sentencing Judge, the applicant's legal representative pointed to the plea of guilty and submitted that the applicant had expressed his remorse in the psychologist's report, and to the author of the pre-sentence report (tcpt 5/6/14 at 14, lines 33-44). His Honour observed that so far as he could see on the materials, the applicant only expressed relief that the victim was not more seriously injured but had not expressed any remorse about being involved in an armed robbery. The applicant's representative agreed with this view of the evidence and did not take his Honour to any part of the tendered materials as supporting the submission which had been made on remorse (tcpt 5/6/14 at 14, line 46 - 15, line 3).

The judge's reasons

1. After summarising the statement of agreed facts and noting that he had viewed the CCTV footage of the incident, the judge concluded, beyond reasonable doubt, that the victim was struck to the head at least twice with the hammer. His Honour found that the wounding involved the brutal application of force with the hammer, that the attack was calculated and sustained (ROS 5).
2. His Honour found that the offending involved a considerable level of planning (because the applicant knew the business where the robbery was committed, had brought with him both gloves and the hammer, and had waited inside for a period of time before he could effect his purpose). His Honour considered that the applicant's text messages to his accomplice also indicated a level of planning (ROS 9).
3. The judge found that objectively the offence was in the "mid-range somewhere" (ROS 5). Later his Honour described the offence as "a mid range offence and a very serious offence" (ROS 11).
4. The judge considered the applicant's subjective case, taking into account the pre-sentence report and the psychologist's report, which he referred to in some detail in his reasons.
5. His Honour noted the assessment in the pre-sentence report that the applicant had committed the offence under the influence of "ice" and was motivated by his need to finance his addiction (ROS 6). Although noting that the applicant had expressed his relief to the author of the pre-sentence report that the victim did not suffer a more dire outcome, his Honour considered that he did not actually see any indication of remorse in relation to the armed robbery offence at all (ROS 7).
6. His Honour noted the psychologist's assessment that although the applicant experienced low self-esteem he had no mental disorder or psychological dysfunction (ROS 8).
7. His Honour also accepted that, to some extent, the fact that the applicant was apparently under the influence of drugs may have caused him to act somewhat out of character. Against this, his Honour found, as already indicated, that there was some planning involved in the offence and that the drug explanation did not apply equally in relation to all the phases of the planning (ROS 9).
8. In finding the applicant had not shown remorse, his Honour said: Has the offender shown any remorse for the armed robbery? I think none whatsoever. It is true that the plea itself can be some manifestation of remorse but I consider realistically here it is not. The plea is some acceptance of responsibility but there is no evidence of remorse for the armed robbery. (ROS 10)

Ground 1: His Honour erred in his finding that the applicant did not express any remorse in his offending

Applicant's submissions

1. Counsel for the applicant submitted that the sentencing judge erred in stating that there was no evidence of remorse for the armed robbery. It was contended that the psychologist's report was an acceptable way for evidence of remorse to be provided, despite the applicant not having given evidence. Reference was made to Butters v R [2010] NSWCCA 1 at [16]ff.
2. It was also contended that the applicant had expressed his contrition for what he had visited upon the victim in the statements recorded in the pre-sentence report where the applicant expressed his relief that the victim was not more seriously injured.

Crown submissions

1. The Crown submitted that self-serving, untested, out of court statements made by offenders to third parties should be treated with great circumspection and given very little weight. Reference was made to R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59] (Smart AJ; Spigelman CJ agreeing); Pfitzner v R [2010] NSWCCA 314 at [33]; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [65]; Pham v R [2010] NSWCCA 208 at [33].
2. The Crown emphasised that the determination of whether or the extent to which an offender has shown remorse is a question of fact that quintessentially falls to the sentencing judge. The Crown also emphasised, in this context, that a sentencing judge is not bound to accept assertions by an offender that he or she is remorseful, even when that assertion is made in the witness box: Alvares v R; Farache v R at [65].
3. The Crown submitted that the evidence of remorse in the present case was so limited as to be inconsequential, and that his Honour's finding of no remorse was well open on the evidence.

Consideration

1. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) provides that remorse shown by the offender for the offence is to be taken into account as a mitigating factor in determining the appropriate sentence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions, or made reparation for such injury, loss or damage (or both). [Emphasis added.]
2. The onus of establishing remorse as a mitigating factor lies with the applicant, on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [25]-[27].
3. This Court has previously said that statements made by an offender to an expert, such as the psychologist Ms Johnson, or to the author of the pre-sentence report, which are not supported by the offender giving sworn evidence, should be treated with considerable caution and in many cases are of very little, if any, weight: R v Qutami at [58] (Smart AJ; Spigelman CJ agreeing).
4. The applicant's reliance on the decision of this Court in Butters v R does not really assist him. Butters v R at [16] is authority that s 21A(3)(i) of the Sentencing Act does not require an offender to give evidence before a finding of remorse is available. That is, the requirement of s 21A(3)(i) to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. Nonetheless, in Butters v R at [18] it was accepted that the sentencing judge was entitled to take into account the fact that the offender did not give evidence. Further, it was acknowledged that this approach is consistent with this Court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence. Reference was made to R v Qutami.
5. As McClellan CJ at CL subsequently explained in Pfitzner v R at [33], with reference to Butters v R: … it does not follow that if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made.

Applicant's submissions

1. The applicant's submissions on this ground were concise. Counsel for the applicant calculated that with the 25% discount for the early plea of guilty there must have been a "starting point" for the head sentence of 9 years 4 months. Relying upon the observations of Simpson J in TYN v R [2009] NSWCCA 146; 195 A Crim R 345 at [33]-[34], it was submitted that it was appropriate to focus on the notional "starting point" for the sentence. The applicant submitted that the starting point was too high, particularly having regard to his Honour's finding of mid-range objective seriousness, the standard non-parole period of 7 years and the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry).
2. With respect to the relevance of the Henry guideline, counsel referred to the subsequent observations of Howie J (Simpson and Hislop JJ agreeing) in R v Henry [2007] NSWCCA 90 at [34]-[35]. There, Howie J said (at [35]) that the Henry guideline although dealing with an offence under s 97, still represents a guide to the sentencing for related offences, such as an offence under s 98, even though that offence carries a standard non-parole period.
3. Counsel for the applicant next submitted that taking the Henry guideline of 4 to 5 years for the total sentence for an offence under s 97 (20 years imprisonment), the "starting point" or nominal sentence in relation to the applicant of 9 years and 4 months is too high for the offence under s 98 (25 years imprisonment), because the maximum penalty under s 98 is proportionally only 25% higher than the maximum penalty under s 97.
4. In oral argument, counsel pointed to the statistics for s 98 offences between January 2008 and December 2014, which indicated that there had only been eight cases involving an offender with no prior offences and a guilty plea, of which only three cases involved an offender aged 18 to 20 years, and that only one young offender had been sentenced to imprisonment in that period. Counsel relied upon these statistics as indicating that there were very few cases in the relevant period answering the criteria comparable with the applicant. Counsel submitted that this highlighted how unusual the present case was.

Crown's submissions

1. The Crown submitted that it was erroneous to focus on the "starting point" of the undiscounted sentence being too high, because this deflected attention from the proper question, namely, whether the sentence actually imposed was unreasonable. Reference was made to the observations of Hoeben CJ at CL in Adzioski v R [2013] NSWCCA 69 at [72]. See also Graham v R [2009] NSWCCA 212 at [40]; and Yang v R [2012] NSWCCA 49; 219 A Crim R 550.
2. Whilst acknowledging the limited reliance which may be placed on sentencing statistics, the Crown pointed to the statistics for s 98 offences which indicated that a head sentence of 7 years or more was imposed in 40% of sentences between January 2008 and December 2014, and the non-parole period of 4 years or more was imposed in 34% of cases.
3. The Crown also drew attention to the circumstances of the offence, including that it involved an unprovoked, planned and brutal attack by the applicant with a hammer on a vulnerable shopkeeper. The Crown submitted that no adequate explanation had been provided by the applicant for why he attacked the victim in this manner. The Crown further submitted that the applicant's subjective case did not mitigate the important considerations of general and specific deterrence.
4. The Crown submitted that taking into account the objective seriousness of the offence, the applicant's subjective case, together with the statutory guideposts, the sentence imposed by his Honour could not be regarded as so unreasonable or plainly unjust as to warrant the Court's intervention.

Consideration

1. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King [1936] HCA 40; 55 CLR 499 at 505. To make good this ground, the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].
2. As has been frequently stated, the task is not for this Court to decide whether it would have exercised its discretion differently: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]. The relevant question on appeal is whether the sentence is within a proper range: R v Morgan (1993) 70 A Crim R 368 at 371 (Hunt CJ at CL); Papworth v R [2011] NSWCCA 253 at [54] (Hoeben J (as his Honour then was); Whealy JA and Simpson J agreeing).
3. The High Court reiterated in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55] the limited value of statistics and previously decided cases in the sentencing process. Intervention on the ground that a sentence is manifestly excessive is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Hili v The Queen at [59]. Intervention is warranted only where error is established in accordance with the principles in House v The King: Hili v The Queen at [59].
4. Here the reliance placed on statistics by both the applicant and the Crown did not assist, other than to indicate, as the applicant contended, that there were very few comparable cases involving young offenders, with no prior offices and a plea of guilty, in the period January 2008 to December 2014.
5. The focus in an appeal against sentence must be on the sentence actually imposed rather than on the notional starting point: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [40] (Buddin J; Simpson and Howie JJ agreeing). This is because the question for this Court is whether the sentence actually imposed was unreasonable: Adzioski v R at [72]; Graham v R at [40]; Yang v R at [63]; MacDonald v R [2007] NSWCCA 105 at [46]; Charlesworth v R [2009] NSWCCA 27 at [78].
6. Another reason why the focus should be on the sentence actually imposed rather than upon the starting point or notional sentence, is as explained by R A Hulme J in Yang v R at [63] - the invitation to compare the "notional starting point" with sentences actually passed in other cases by way of statistics is to compare apples with oranges.

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