Pang v The Queen [2018] VSCA 5

2 On 4 March 2016, the appellant pleaded guilty in the County Court to one charge of recklessly causing serious injury to Mr Athian.[1]

3 Following a plea, during which certain factual matters were disputed, the judge sentenced the appellant on 20 February 2017 to be imprisoned for four years, and fixed a non-parole period of two years.[2]

4 On 4 August 2017, Priest JA granted the appellant leave to appeal against sentence[3] on a single ground as follows:[4]

In deciding to limit the significance of the issue of delay on the basis that:

(a) the [appellant] had left the jurisdiction; and

(b) the [appellant] failed to resolve the matter earlier,

the Learned Sentencing Judge erroneously and unduly restricted the appropriate recognition to be given to the issue of delay.

5 Having now heard detailed argument, we are of the view that the essential complaint made in the ground has been made out. We would, however, dismiss the appeal, since we are of the view that no different sentence should be imposed.[5]

6 For present purposes, the circumstances of the offending are sufficiently described in the judge's reasons for sentence:

On the evening of 1 May 2013, [the appellant] visited his girlfriend, Kelly Lam, at her flat on the 7th floor of the Richmond Housing Commission complex. At that time, she lived there with her mother, Que Trinh Lam, and her two younger brothers, Thai Nguyen and Cang Nguyen.

At approximately 12.29 am on the following morning, Kelly and her mother left the flat with the intention of walking their dogs outside. After doing so, they returned to the foyer area of the flats to catch a lift upstairs. As the lift doors opened, several people exited the lift, including a number of African females and two African males, one of whom was the ultimate victim, Bol Athian.

The African females approached Kelly and her mother and started to argue with them. Mr Athian did his best to try and calm the situation down by attempting to move his group along while standing between the two groups of females. At one point, one of the dogs ran outside and Mrs Lam went after it.

At about that time, an Asian male arrived and he, together with Makoi Ayub, stood between the African females and Kelly in an attempt to protect Kelly. Notwithstanding those efforts, one of the African females kicked out at Kelly and pulled her hair. On returning inside with the dog, Kelly's mother kicked one of the African females in the back. Both she and her daughter then used their mobile phones to call for help; she called her son, Cang, while Kelly called her boyfriend, [the appellant].

Whilst still on the phone to Kelly, [the appellant] and Cang Nguyen were captured on CCTV cameras entering the lift together on the 7th floor. ... It is not in dispute that prior to leaving the flat and getting into the lift, each of them were armed; [the appellant] with a hammer that he had been using to assemble and/or disassemble furniture and Mr Nguyen with a knife.

Various CCTV cameras located within and outside the Housing Commission complex captured what then unfolded. As [the appellant] exited the lift on the ground floor, he removed the hammer from his pants pocket and then ran into the group of people while brandishing the hammer. He then pushed through to where Kelly and her mother were standing. He then argued with Mr Athian who remained intent on trying to calm the whole situation down. At that point, Kelly's mother kicked one of the African females who then walked away rather than retaliate. One of the other African females then moved and stood away from the group. Mrs Lam then kicked that female to the stomach region.

The crowd then dispersed, allowing anyone who wished to leave, to do so.

At that point, [the appellant] quickly walked through the front foyer and out of the building, closely followed by Cang Nguyen. His reason for doing so, and his demeanour whilst outside is one of the two matters in dispute between the parties.[[6]]

After being outside for a short period [the appellant] returned to the front foyer with Cang. A short time later, Kelly Lam's other brother, Thai Nguyen appears to have travelled down in the lift from the 7th floor.

Once inside, [the appellant] continued to argue with Mr Athian while adopting an aggressive stance.

Then, moments after turning his back on the victim, [the appellant] swung his right hand in which he was holding the hammer, over his head in an arc motion towards Mr Athian. In doing so, he struck the victim with the hammer to the left side of his head. The victim immediately fell to the ground where he remained.

Once he had fallen, Thai Nguyen approached him, crouched down and then stabbed him three times to the left flank and buttock. ...

After Mr Athian was stabbed, [the appellant] and others in his group caught the lift to the 5th floor. The CCTV footage shows [the appellant] still holding the hammer that he had used to strike the victim.

...

The first police officers on the scene arrived approximately 43 seconds after the victim had been struck. They found him unconscious and laying on the floor in a pool of blood.

MICA paramedics arrived some minutes later and treated the then semi-conscious victim at the scene before rushing him by ambulance to the Alfred Hospital.

At approximately 3.41 am police attended at the flat occupied by Kelly Lam's family in an attempt to locate her brothers. When they rang Cang, he exited the flat and was arrested. A similar attempt in respect of Thai failed. When police then entered the flat, they located a wallet which contained [the appellant]'s driver licence. ...

7 As we earlier mentioned, certain factual matters were disputed on the plea.

8 Of the two matters disputed, the first - whether the appellant went outside looking for someone to fight, rather than to assist Kelly Lam find one of her dogs - was resolved in the appellant's favour. Hence, although the sentencing judge accepted that the appellant was agitated when he went outside, he was not satisfied that the appellant was seeking someone to fight.

9 The second disputed fact - whether at the time that he struck Mr Athian, he perceived that he and or Kelly Lam were in immediate danger from him - was resolved adversely to the appellant, the sentencing judge finding that 'there was no such basis in fact for such a perception being formed at that time'. Priest JA refused leave to appeal on a ground which sought to challenge that finding.[7] No election was filed concerning that refusal.[8]

10 Police arrived at the Richmond Housing Commission complex less than a minute after Mr Athian had been struck with the hammer. They found him lying in a pool of blood, unconscious. About eight minutes later, at 12.48 am, MICA paramedics arrived and treated Mr Athian at the scene before rushing him by ambulance to the Alfred Hospital.

11 A short time after arrival at the Alfred Hospital, the victim was placed into an induced coma and transferred to the Intensive Care Unit. Medical records show that Mr Athian suffered from:

• a depressed skull fracture through the left frontal bone - comminuted in three pieces - which was associated with dural laceration and laceration of the underlying brain;

• a slash wound to his right flank and two slash wounds to his buttocks.[9]

12 Mr Athian underwent an emergency craniectomy and removal of the depressed comminuted open skull fracture, debridement of brain contusion, repair of dura and scalp (and closure of right buttock lacerations). He remained in intensive care until 5 May 2013, and remained at the Alfred hospital until 9 May 2013. Once discharged from the Alfred Hospital, Mr Athian was an inpatient in the neurological rehabilitation ward at the Caulfield Hospital from 9 to 24 May 2013.

13 None of the bones associated with the skull fracture could be replaced. Due to the removal of the skull bone, the victim was required to wear a protective helmet for several months. Further surgery was required to repair the defect to his skull.

14 Bol Athian continues to suffer the effects of the injuries inflicted by the appellant, including a complete lack of use of his right hand. Due to frequent, unpredictable convulsive seizures associated with post-traumatic epilepsy resulting from his injuries, Mr Athian is no longer able to drive and is unable to work. He subsists on a disability pension.

15 In short, the victim's head injuries were very serious and life-threatening, and continue to have a very profound negative impact upon his life.

16 Before turning to consideration of the ground of appeal, it is necessary to outline the relevant history, so as to shed light on the reasons for the delay in the appellant being sentenced.

17 Bol Athian was, as we have said, severely injured on the morning of 2 May 2013.

18 At 2.00 pm that day, the appellant's mother booked him a flight to Los Angeles, ostensibly so that he could visit his brother. The appellant remained away for approximately four weeks.[10]

19 Police did not arrest and interview the appellant until 7 December 2013. He was charged that same day with intentionally causing serious injury and affray.

20 A committal mention took place on 4 March 2014. Thereafter, a contested committal hearing - in which a principal issue was identity - took place on 23 and 24 June 2014, resulting in the appellant being committed for trial in the County Court.

21 In anticipation of trial, a directions hearing then took place in the County Court on 25 June 2015; a 'funding mention' occurred on 13 March 2015; and a final directions hearing was conducted on 25 June 2015.

22 The matter was placed in the reserve list for trial in the County Court on 17 August 2015. Due to plea negotiations between the parties,[11] however, and in light of the uncertainty of the availability of a judge to try the matter, the trial was adjourned to 7 March 2016.

23 Shortly before the date fixed for trial, on 29 February 2016, the matter resolved, so that when he was arraigned on 4 March 2016, the appellant pleaded guilty to a charge of recklessly causing serious injury.

24 The plea hearing initially was listed for 25 May 2016, but was adjourned so that up-to-date victim medical records could be obtained.

25 Thereafter, on 3 August 2016 there was another adjournment because the two factual matters in dispute to which I have earlier referred[12] necessarily had to be dealt with by contested plea, but the victim was unavailable to give necessary evidence.

26 In the result, the plea hearing commenced on 11 November 2016, and continued on 16 and 18 November 2016. Due to the absence of a witness, Hany Mohamed, the plea was then adjourned to 8 February 2017. Mr Mohamed gave evidence on 8 February 2017, and the parties were asked to file submissions with respect to the factual issues in dispute.

27 The plea was finalised - and the judge delivered sentence - on 20 February 2017, three months or so short of four years since the offence was committed.

28 As we have mentioned, the ground of appeal claims that the sentencing judge 'erroneously and unduly restricted the appropriate recognition to be given to the issue of delay', by limiting the significance of delay by reason of the fact that the appellant had left the jurisdiction, and had failed to resolve the matter earlier.

29 In the course of the plea, the appellant relied on delay on the bases, first, that the matter had been hanging over his head; and, secondly, that he had undergone significant rehabilitation in the period intervening between the offence and sentence. Counsel submitted that, although he could not 'characterise this as a case where you have evidence of immediate remorse and immediate efforts to resolve the matter', by the time the trial was listed in August 2015, 'there were very strong and strenuous efforts made to resolve the matter'.

30 When dealing with the issue of delay, the judge said in his reasons for sentence:

In the course of his submissions, [counsel for the appellant] also sought to rely on delay as a relevant matter in mitigation. I am prepared to take that matter into account, but only to a point. That is because the delay has, in part, been attributable to [the appellant's] own actions; first by leaving the jurisdiction for a short period and second, by leaving the resolution of the matter until the stage that he did.

31 It will be noticed that the judge was prepared to take delay into account 'only to a point', because 'in part' the delay was attributable to the appellant's actions, first, 'by leaving the jurisdiction for a short period', and, secondly, 'by leaving the resolution of the matter until the stage that he did'.

32 As to the first of those two matters, it will be remembered that the appellant left Australia the day after the offence and did not return for four weeks. More than six months then elapsed, however, before police arrested the appellant and charged him.

33 With respect to the second matter, the appellant was charged with intentionally causing serious injury on 7 December 2013, but an agreement that a plea to recklessly causing serious injury would be accepted by the prosecution was not reached until more than two years later, on 29 February 2016.

34 The gist of the appellant's submissions in this Court was that neither of the matters concerning delay adverted to by the sentencing judge should have resulted in the appellant being deprived of the full benefit of the delay in mitigation of his sentence. It was submitted that neither of the factors identified by the sentencing judge justified any reduction in the weight to be afforded to delay because:

• first, the prosecution made no submission that the appellant was responsible for any 'disentitling conduct' (and in particular, it was not suggested that his three week absence in May 2013 materially contributed to the delay in resolving the matter);

• secondly, the process of conventional plea negotiation - which resulted in the prosecution accepting a plea to recklessly causing serious injury (rather than the more serious charge of intentionally causing serious injury) - should not be considered conduct that prevented the appellant from receiving the full benefit of the delay;

• thirdly, it was the conduct of the prosecution that had caused the contested plea hearing to be adjourned three times; and

• fourthly, the appellant's efforts toward rehabilitation during the period between offending and sentence - which included excelling in a Bachelor of Arts course, becoming engaged, and being involved in charity work - fell into an exceptional category.

35 Ultimately, the respondent submitted that the sentence imposed was reasonably open, the non-parole period - fifty per cent of the term of the head sentence - reflected the appellant's excellent prospects of rehabilitation. The respondent emphasised that the appellant's offending constituted a serious example of the offence of recklessly causing serious injury, in that the appellant had used a hammer to cause life-threatening injuries to the victim, in circumstances in which the appellant's moral culpability is 'high'. With specific reference to the issue of delay, the respondent submitted that the judge did not significantly reduce the weight given to delay. Rather, so it was submitted, the judge acknowledged the features of the cause of the delay that were relevant. The respondent argued that although the length of the appellant's overseas trip was brief, it was at a time when the police were investigating. Further, it was pointed out that six months elapsed between the prosecution indicating that it would accept a plea of guilty to recklessly causing serious injury (on 18 August 2015) and the matter resolving (on 29 February 2016). The respondent contended that the sentencing judge was entitled to take into account the reasons for the late resolution of the matter, including that the appellant had acknowledged that he had been unable to face his own guilt.[13]

36 Delay intervening between offending and final resolution of criminal proceedings can, in recognised circumstances, be a significant factor going in mitigation of sentence. As Chernov JA observed in Cockerell:[14]

First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger,[[15]] there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.

37 Although the judge did take delay into account as a mitigating feature, he did so 'only to a point'. Thus, in our view, there can be no doubt that the sentencing judge intended to deprive the appellant of the full benefit that would otherwise have flown from the delay. He purported to deny the appellant that full benefit 'in part' because he left the jurisdiction for three weeks, and because he did not resolve his plea at an earlier time. In so doing, in our opinion, his Honour fell into error, since, first, the appellant's absence overseas in May 2013 could not have had more than an insignificant effect in retarding the police investigation; and, secondly, the time spent in genuine attempts to effect a plea resolution could not have counted against the appellant. We venture to repeat (and adopt) what Priest JA said when granting the appellant leave to appeal:[16]

I am mindful of the caution that sentencing remarks ought not be construed as if a will or a deed or a statute, and that care must be exercised so as not to read too much into the judge's observation that he was prepared to take delay into account 'only to a point'. That said, however, it seems to me that the two justifications relied upon by the sentencing judge for limiting his consideration of the mitigating impact of delay should not have resulted in any significant reduction of the weight to be given to the delay. Most of the reason for the delay in ultimately resolving the matter could not be sheeted home to the applicant. Indeed, the applicant's absence overseas for three weeks or so could not materially have contributed much to the delay in the police interviewing and charging him; and any legitimate process of negotiation concerning the charge to which the prosecution ultimately accepted the plea of guilty should not have counted against the applicant.

38 For these reasons, we are, as earlier indicated, of the view that the appellant has established error. Notwithstanding that fact, however, we do not consider that a different sentence should be imposed.

39 It may readily be acknowledged that, since the offending, the appellant - who was aged 23 years at the time of offending and is now 28[17] - has made a concerted effort to rehabilitate. Thus, his academic transcript for the Bachelor of Arts (Psychology) course that he undertook at Deakin University demonstrates that in the years 2014, 2015 and 2016, with only two exceptions, the appellant's grade in every subject - he has completed twenty - was either a 'Distinction' or a 'High Distinction'. And since being imprisoned, the appellant has undertaken a Bachelor of Business degree course with Griffith University, completing units via Open Universities Australia. In the eight units he has completed, apart from one 'Credit', his results have been a mixture of 'Distinction' and 'High Distinction'.

40 Moreover, the appellant is able to rely on a number of impressive character references. Having read them, we agree with the sentencing judge's description of them:

... Without exception, they speak of him as someone who has demonstrated himself to be a responsible, respected and well behaved member of the community. They consider his actions in committing this offence to have been out of character. They also refer to the regret and shame that he feels for having offended in this way and his acceptance of personal responsibility for it.

There is an underlying unity to those references despite the widely divergent ages and backgrounds of the authors. Their reflections on his personal characteristics refer to, amongst other things, his caring and generous nature, demonstrated in part by the various charity works that he has been involved in and the assistance that he has willingly provided to other people.

41 Furthermore, since offending the appellant has completed a three year course of psychological intervention with a psychologist, Lisa Coloca, in order to address his perceptions of injustice and anger towards his father, and a period of anger management counselling with a counsellor, Robert McInnes.

42 In light of those matters, we agree with the primary judge's assessment that the appellant has excellent prospects of rehabilitation, and that it is very unlikely that the appellant will re-offend in a similar fashion.

43 We acknowledge that it is of great importance not to permit the effects of an unintended catastrophe to 'swamp' all other sentencing considerations, so as to cause an imbalance between all the factors which ought properly to be given their proper weight.[18] It cannot be ignored, however, that the appellant inflicted devastating, life-changing injuries on Bol Athian, who will forever continue to suffer their disabling effects; and that at the time that he struck his victim with the hammer - the use of that weapon being an aggravating feature - the appellant foresaw the probability that he would cause serious injury by so doing.[19] Thus, although the appellant's rehabilitation is advanced, and the need for specific deterrence may be seen as reduced, general deterrence, denunciation of the appellant's conduct and just punishment all remain important factors in arriving at an appropriate sentence.

44 In our opinion, four years' imprisonment for the appellant's offending is, when all relevant mitigating features are taken into account, a moderate sentence. And a non-parole period of two years pays due recognition to the appellant's prospects of rehabilitation. The possibility of conditional release after serving a shorter period of imprisonment than two years would not, in light of the gravity of the appellant's conduct, be consistent with the interests of justice.

[1] Crimes Act 1958, s 17. The maximum penalty is 15 years' imprisonment.

[2] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the appellant's plea of guilty, he would have imposed a sentence of five years' imprisonment with a non-parole period of three years.

[3] See Criminal Procedure Act 2009, s 315(1)(a).

[4] Priest JA refused leave to appeal on a further ground:

1. The Learned Sentencing Judge erred in his determination of the factual issue relating to the Applicant's perception of danger by:

(a) proceeding on the basis that the CCTV footage demonstrated that there was insufficient time for the Applicant's version to be possible; and

(b) by proceeding on the basis that it was very significant that Kelly Lam did not give a similar account to the Applicant in her statement to police.

[5] See Criminal Procedure Act 2009, s 281(1)(b).

[8] See Criminal Procedure Act 2009, s 315(2).

[9] These injuries were inflicted by Thai Nguyen. See [6] above.

[10] He flew out of Australia on 3 May 2013 and returned on 4 June 2013.

[11] On 18 August 2015, the appellant's legal practitioners on his behalf offered pleas of guilty to intentionally causing injury and affray. That offer was rejected by the prosecution, but it was indicated that a plea of guilty to recklessly causing serious injury would be an acceptable resolution of the matter.

[13] The appellant tendered a written apology to the victim, dated 3 August 2016 (Exhibit 2), the opening sentence of which was: 'I'm sorry it's taken so long for me to reach out to you, part of me would like to think it was because I was restricted by my bail conditions, but truthfully I lacked the inner courage to face my own guilt'.

[14] R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [10] ('Cockerell'). See also R v Tiburcy [2006] VSCA 244; (2006) 166 A Crim R 291; R v Merrett, Piggot and Ferrari [2007] VSCA 1; (2007) 14 VR 392, 400 [35]; Arthars v The Queen [2013] VSCA 258; (2013) 39 VR 613, 620-22 [25]-[29].

[15] [R v Schwabegger [1998] 4 VR 649, 659-60]

[16] Pang v The Queen (Unreported, Victorian Court of Appeal, 4 August 2017, Priest JA).

[17] His date of birth is 15 July 1989.

[18] R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 103-104 (Crockett and Hampel JJ).

[19] The judge observed in his reasons for sentence that he had 'no doubt' that the appellant 'was reckless, not just to the probability of causing a serious injury, but also a very serious injury'. In the course of the hearing of the appeal, when replying to the submissions of the respondent's counsel, senior counsel for the appellant argued that this finding was not open, given that the hammer used by the appellant was 'little'. There was, however, no ground of appeal impugning the sentence based on the judge's observation; and, in any event, we think it was open to the judge to conclude that the appellant in the circumstances foresaw the probability of very serious injury being caused, notwithstanding the suggested inadequacy of the hammer's size.