Police V Le [2008] NSWLC 18

Local Court of NSW|1986-05-09

CATCHWORDS: Malicious Wounding - Assault Occasioning Actual Bodily Harm - plea of guilty - remorse

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R-v- Carroll [2008] NSWCCA 218 R -v- Dib [2003] NSWCCA 117 R -v- Dickinson [2004] NSWCCA 457 R -v- Doan (2000) 50 NSWLR 115 R -v- Moore [2005] NSWCCA 407 CASES CITED: R -v- Palu (2002) 134 A Crim R 174 R -v- Stambolis [2006] NSWCCA 56 R -v- Thomson & Houlten (2000) 49 NSWLR 383 R -v- Underhill CCA 9 May 1986 R -v- Williams (1990) 50 A Crim R 213 The Queen -v- Dodd (1991) 57 A Crim R 349

Sentencing Remarks 15th October 2008

On 2nd July 2007 the offender was arrested and charged with a variety of offences arising out of an incident on 8th April 2007 at licensed premises known as the Cabramatta Inn. These premises are located in Railway Parade at Cabramatta. It is clear from the statement of agreed facts that the premises were used on that date as a meeting place for discussions between the victim of the charge of malicious wounding, Vinh Cao and a person by the name of Dai Tran. It is also accepted by the prosecution that a degree of enmity existed between Vinh Cao and Dai Tran as a result of Cao being rejected by a Margaret Huynh as a suitor in favour of Tran. The agreed facts [which are annexed to these remarks for the sake of completeness] seek to establish that the person Vinh Cao is a somewhat unsavoury character with a particular reputation within the local community including a reputation for violence and the means to apply it, whether physically at his own hands, with a weapon or by the involvement of third parties.

The agreed facts identify the smashing of the rear window and extensive damage to the vehicle belonging to Margaret Huynh as an example of what is said to be Cao's violent response to not getting his own way in seeking her affections. Whilst the inference is available nothing before the Court establishes it as a proven fact. At best it is provided as a contextual assertion of the circumstances that may have led to the unwise decision on the part of the offender to accompany Dai Tran and a person by the name of Minh Vo to the Cabramatta Inn on 8th April 2007. By extrapolation it is suggested that the offender's actions in arming himself with a meat cleaver were motivated by his knowledge of Cao's previous history and propensity to violence. A statement of facts from proceedings against Vinh Cao in 2006 was tendered to the Court by counsel for the offender in an endeavour to underline Cao's violent disposition.

The agreed facts establish that at approximately 4.00 p.m. the offender entered the premises separately from his principal friend Minh Vo and took up a seat some distance from where Vinh Cao and his supporters were seated and at which Dai Tran and his supporters we variously seated and gathered.

At a point during this meeting a person identified as Anh Tu was summoned to the table at which Vinh Cao was seated. For reasons that remain unknown Cao and Tu became engaged in a physical scuffle during which Cao fell to the ground.

At this time the offender removed the meat cleaver he had concealed on his person and approached the group waving it about whilst telling those surrounding the scuffle between Tu and Cao to move away.

The prosecution concedes that in the course of what had by this time become a confused jumble of movement the offender inadvertently struck John Tran, a friend of Dai Tran with the meat cleaver causing a wound to his back necessitating hospitalisation. Although the agreed facts indicate that the prosecution accepts that this injury was caused "accidentally" it must be the case that the prosecution asserts that the injury was caused by recklessness on the part of the offender in the manner by which he created fear of immediate and unlawful violence on the part of those who observed his activities with the meat cleaver and subsequently came into contact with John Tran in the context of recklessness rather than intentional striking [see R -v- Williams (1990) 50 A Crim R 213 at 220-2]. Accident would not render the offender criminally liable, recklessness in such a context can.

The gravamen of the allegation regarding the malicious wounding of Vinh Cao is contained within paragraph 15 of the agreed statement of facts. That paragraph states "Whilst Vinh Cao was on the ground struggling with a person, Le approached Cao and struck him with the meat cleaver. Cao received a 6-centimetre cut to his right shoulder. "

During the sentencing submissions before me the prosecution played a recording of the surveillance footage from inside the hotel. It provides a graphic demonstration of the conduct of the offender in firstly entering the fray from a position off camera and of the manner in which the meat cleaver was displayed and wielded within the group of men milling around at the time.

It is clear in these proceedings that the offender seeks to portray his conduct as being referable to a pre existing belief that the person Vinh Cao is to be feared and that the explanation [but not justification] for his decision to take the meat cleaver into the premises concealed on his person was preparatory to an expected likelihood that he may need to come to the assistance of his friend Minh Vo and those that were with him.

Much was made in the course of submissions by counsel for the offender of a "belief" in the mind of the offender that prior to moving to strike Vinh Cao with the meat cleaver he had formed the view that Cao was armed with a pistol, describing an observation on his part of something with the appearance of a pistol in the back pocket of Cao's trousers or jeans. The offender gave evidence before me that whilst seated at the table prior to intervening in the activities at the table where Cao and Tran were engaged he heard the words "he's got a gun". The offender also said in evidence that he did not know who might have a gun and that "this was the reason he pulled out the concealed meat cleaver, panicked and used excessive force". In cross-examination the offender asserted he believed Cao was the person who had the gun. The offender further stated that after he had struck Cao with the meat cleaver and people had moved back he saw what he believed to be a black handle in Cao's back pocket.

It is pertinent to note that there is no evidence before the Court either of the physical presence of a gun in the possession of Cao or any other person. The utterance of the words "he's got a gun" are referred to only in the evidence of the offender and in the statement of John Tran. Only Mr Tran identifies a particular person as being the one who was alleged to have a gun.

Paragraph 18 of the agreed facts contains a statement attributed to Vinh Cao admitting to having possession of a knife that he "had with him for protection". The mere assertion by the offender that his belief was predicated on a circumstance not amenable to proof or disproof does not mean that such assertion is to be accepted by the Court. Despite the untested statement by John Tran [a person who has made his peace with the offender and whose statement should be treated with a necessary caution, the better course in these proceedings is to treat this portion of evidence with scepticism as to the truth of it and caution as to the weight to be given on sentence. At best it may explain part of the offender's conduct [but not that leading to the decision to take the meat cleaver to the meeting location or the apparent willingness to use it if the need arose]. Considerations on Sentence

The Court is familiar with the purposes of sentencing. They are set out in Section 3A of the Crimes (Sentencing Procedure) Act 1999 [hereafter called the Act]. I do not intend to repeat those well known purposes in these remarks. Instead I turn to the provisions of Section 21A of the Act. This provision requires the Court to consider the known relevant aggravating factors the known relevant mitigating factors and other objective or subjective factor(s) that affect the relative seriousness of the offence.

There are in my view a number of aggravating factors in the commission of these offences. I turn firstly to Section 21A(2)(b) and Section 21A(2)(c)- that the offence involved actual or threatened use of violence and the offence involved the actual or threatened use of a weapon.

It is a trite observation to make that arming oneself with a meat cleaver with a known capacity for causing physical injury when used in a violent or aggressive manner towards other human beings is the type of conduct that cannot be condoned. Possession of the weapon reflects the increased potential of the threat offered and the actual use, irrespective of whether it be by an act of recklessness in the case of the victim Tran or with deliberate malice in the case of the victim Cao increases the seriousness of the offence. The court is entitled in my view to take the use of the meat cleaver into account on both charges in line with the authority set out in R -v- Dickinson [2004] NSWCCA 457.

The Court has given consideration as to whether the provisions of Section 21A(2)(g) also apply to aggravate the conduct. Those provisions require the court to take into account the injury, emotional harm, loss or damage caused by the offences where such outcome is substantial. In my view although the injuries to the two victims are serious they are not substantial nor do they appear to have the prospect of permanent consequences. There is no evidence before me to suggest that emotional harm or loss to the victims was a by-product of the offender's conduct (R -v- Moore [2005] NSWCCA 407).

It is problematic whether the provisions of Section 21A(2)(n) are satisfied on the evidence before me. Whilst there was an element of planning on the part of the offender in arming himself with what, in context was an offensive weapon there is no evidence that this activity was undertaken with an established intention of using it to commit the offences in question. It is at least arguable that the recklessness relied on by the Crown for the charge of assault occasioning actual bodily harm is inconsistent with any element of planning or organisation. It is also arguable that had there been no initial outbreak of physical activity between the victim Vinh Cao and another person that the offender would not have acted in the way he did. The Court cannot be satisfied that this circumstance of aggravation has been established. Mitigating Factors - Section 21A(3)

Turning to the factors which may be taken into account in mitigation of penalty it is the corollary of the finding of the Court in relation to the absence of a finding that the provisions of Section 21A(2)(g) have not been established on the material presented to the Court that Section 21A(3)(a) is established. In my view the same corollary applies in respect of Section 21A(3)(b) although it must be noted that had it not been for the offender's improper decision to arm himself with the weapon the offences could not have been committed in the manner set out within the facts. Consequently the weight to be given to this aspect of mitigation is negligible.

The offender attempted through his counsel to portray the victim Cao as some sort of local hoodlum with dangerous propensities such that would explain the offender's conduct firstly in arming himself with a weapon and secondly acting spontaneously when he saw the initiating physical altercation between Tu and Cao and, so he says, heard the words "he's got a gun". Counsel did not further clarify the purpose of leading this evidence. The Court assumes it relates in some abstract sense to the provisions of section 21A(3(c) and (d) - that the offender was provoked by the victim or was acting under duress [but not in the sense that it might afford a defence].

The law in relation to both circumstances is well settled and needs no exposition for the purpose of these comments. If either provocation or duress existed at all, which is doubtful, then it could not possibly apply to the offender. The offender was not part of the originating circumstances that led to the arranging of the meeting and went to the meeting of his own free will, armed with an offensive weapon and the belief it may be necessary to employ it. Those circumstances take his conduct well away from any suggestion that the mitigating factors in Section 21A(3)(c) or (d) have any application.

Turning to the provisions of Section 21A(3)(e) (f) and (g) it is established by the offender's prior antecedents that whilst in his early years he had an unenviable record of criminal offending behaviour within the community sufficient to diminish his good character he has, since 1999 remained trouble free. Objectively the demonstrated capacity for rehabilitation created by almost a decade of good behaviour is to his credit but not to the extent that it entitles the Court to conclude that he is unlikely to re-offend.

The willingness of the offender to become involved in a situation that did not affect him in the manner he did and to do so by resort to violence with no apparent thought to the potential consequences does not persuade this court that he is unlikely to re-offend. Although for the purpose of Section 23A(3)(h) there are prospects of rehabilitation I am unable to conclude with the necessary level of confidence that they are good prospects. At best this attempt to predict the future remains problematic.

I do however accept that the offender has shown remorse for his conduct in relation to the victim Tran. This is an important consideration for the purpose of Section 23A(3)(i). His post offence contact with Tran, the payment of his medical expenses and the establishment of a relationship of potential friendship all point to genuine contrition and remorse. The letter from Mr Tran tendered to the Court confirms that reality. That may be commendable but it is irrelevant for the purposes of sentencing.

In R -v- Palu (2002) 134 A Crim R 174 at [37] the Court said: "The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness…Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution….Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment the purpose of which is to protect the public not to mollify the victim."

It is difficult to arrive at the same conclusion in respect of the victim Vinh Cao. The inevitable consequence of the offender seeking to blacken the reputation of Cao must be the creation of an inference that he is not genuinely contrite or remorseful for his actions towards this victim. The offender cannot have it both ways. Listening to the offender and the submissions made on his behalf through his counsel the Court finds it difficult to conclude that irrespective of the acknowledgement of his guilt for his conduct that there remains in the mind of the offender only a superficial regret. It is appropriate to record his response to counsel regarding his conduct towards the victim Cao. The offender said "It's only a cut on the arm. I am very regretful I agree it is the wrong thing to do."

Attempting to downplay a course of conduct whereby the offender singled out the victim who was at the time lying on the floor struggling with someone else and then striking him with the meat cleaver with force sufficient to penetrate his clothing and cause a wounding by describing it as "only a cut on the arm" is inconsistent with contrition.

The offender entered a plea of guilty to the charges before the Court on 5th August 2008. The nature of the plea is relevant for the purpose of Section 23A(3)(k) and Section 22 of the Act. Section 21A(3)(k) describes a plea of guilty as a mitigating factor. Section 22 adds a qualifying factor to the relevant consideration of the effect of a plea of guilty. Section 22(1)(b) requires the court to consider "when the offender pleaded guilty or indicated an intention to plead guilty" and identifies by association the discretion within the Court to impose a lesser penalty than it would otherwise impose.

A plea of guilty has been the subject of a Guideline Judgment from the Court of Criminal Appeal. The essence of the decision in R -v- Thomson & Houlten (2000) 49 NSWLR 383 is well known within the criminal justice system, particularly in relation to the utilitarian value of such a plea to the administration of justice. The Court record establishes that on 5th August 2008 the charges the subject of these proceedings were filed in the Local Court. A plea of guilty was entered the same day. The utilitarian value is established but not to the extent that it attracts a discount towards the higher end of the discretionary exercise.

Originally the offender was charged with a number of more serious offences. It is clear that the preferment of the charges to which the pleas were ultimately entered was the product of charge bargaining with the prosecution.

As the Court said in R -v- Dib [2003] NSWCCA 117: "If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part recognition of practical advantages and not merely recognition of mitigation of culpability."

The position is further explained in R -v- Stambolis [2006] NSWCCA 56 " There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity."
The initial proceedings were listed before this Court as defended proceedings. The nexus between the laying of the lesser charges and the pleas of guilty clearly demonstrate the result of charge bargaining. One of the charges withdrawn is identical in nature as to conduct of the charge to which the plea of guilty was entered save for the removal of the suggestion that the offence was committed in company.

In furtherance of the resolution of the charges the proceedings were originally listed for a ten-day defended hearing. By the time the pleas of guilty were entered to the lesser [and fewer] charges the matter had been before the Court on 10 occasions over a 12-month period. The offender is entitled in my view to a discount but I do not believe that it should be at the upper end of the range identified in R -v- Thomson & Houlten as reflecting the optimum utilitarian value. I allocate a discount of 15% for the utilitarian value of the plea.
In addition to the mitigating factors set out in Section 21A(3) the offender invites the Court to take into account the subjective features relevant to himself and the contents of a psychological report. The subjective features are adequately set out in the pre sentence report prepared by the Probation and Parole Service. The report describes the manner by which the offender came to Australia, his employment history and the unfortunate fact that he has from time to time been the victim of what are suggested to be racially motivated attacks and the success he has had in overcoming an early life of drug addiction and criminal offending behaviour to the point of reintegration within his family and the community.

The psychological report confirms the impact of the sudden departure of the offender and his family from Vietnam and the cultural norms with which it was familiar. It describes the difficulties of integration into another country and another culture and the impact that cultural and social alienation had on the development of anti social behaviour in his formative years. It also describes his resilience and success in overcoming early disadvantage.

The references from various members of the community supporting the offender both as a person and someone who is reliable within his working environment confirm that success.

The psychological report presents no information regarding issues within either the makeup of the offender or his place in the community that might be said to diminish the need for general or special deterrence.

Counsel for the offender submitted that balancing the objective and subjective factors did not necessarily mean that the only sentence available to the Court was one consistent with condign punishment. He further submitted that the strong subjective features within the personality and background of the offender should lead to an emphasis on rehabilitation as opposed to general and specific deterrence. Such submissions have however to be considered in context.

As I noted earlier in these remarks the offender armed himself with a weapon and placed himself in a position where he had the foreknowledge of the possibility of having to use it. There were other ways to handle the situation than the intervention with a dangerous weapon. The possession and use of a weapon has long been the subject of disapprobation by superior Courts.

In R -v- Underhill CCA 9 May 1986 in dealing with a charge of malicious wounding with intent the court said [at page 3]: "This court and other criminal courts has stated repeatedly that those who use knives when perpetrating criminal offences must expect to receive a significant measure of criminal punishment as a consequence. The knife is held in universal abhorrence within the community and this view is shared by the criminal courts."
More recently in R -v- Dickenson [2004] NSWCCA 457 at 23 the view expressed in Underhill in relation to the use of knives to inflict injury, albeit grievous bodily harm, was re-asserted.

There are a number of other authorities that support this conclusion viz., R -v- Olivier; R -v- Hardy BC 9304201, R -v- Rothapfel NSWCA 60583/91. A meat cleaver can properly be regarded as analogous to a knife.

Recently the Court of Criminal Appeal in R-v- Carroll [2008] NSWCCA 218 at [20] restated the principles that a sentencing court must take into account on sentencing. It also reminded both the community and the Courts that "the community has a justifiable concern about the level of violence. In our community and that … the community rightly expects the courts to impose a sentence which not only provides appropriate punishment but which will unequivocally send a message that violence is unacceptable." The Court in that case may have been dealing with a prosecution for manslaughter but the observations are pertinent to all acts of violence within the community.

It is appropriate in the view of the Court to also re-state the observations of the Court at paragraph [20]. The court said, referring to an earlier decision The Queen -v- Dodd (1991) 57 A Crim R 349: " As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 26 A Crime R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushb y [1977] 1 NSWLR 594."

These observations and the need for consistency in sentencing provide strong and sound reason for the Court to reject an outcome inconsistent with condign punishment. Mindful as the Court must always be of the admonition contained within Section 5 of the Act I am of the view that nothing less than full time imprisonment can meet the reasonable expectations of the community and address the purposes of sentencing set out in Section 3A of the Act. General deterrence must be of paramount importance in the factual circumstances of these proceedings. The court would be failing in its duty to the community were it not to take a strong stand against conduct such as that of the offender in arming himself with a potentially lethal weapon and then using it without hesitation in the manner depicted both in the written facts and more graphically in the video surveillance footage.

The offences to which the offender has entered pleas of guilty vary in their objective seriousness. Although the jurisdictional limit of this Court for each offence is a term of imprisonment not exceeding 2 years in respect of each offence the Court is required to have regard to the legislative maximum R -v- Doan (2000) 50 NSWLR 115. The charge of malicious wounding pursuant to Section 35(1)(a) [since amended] has a maximum penalty of 7 years imprisonment. The charge of Assault occasioning actual bodily harm brought pursuant to Section 59(1) of the Crimes act 1900 has a maximum penalty of 5 years imprisonment.

It is my view that even though the wounding and bodily harm are not of the most serious kind the aggravating factor established by the manner in which such injuries were caused places each offence towards the upper middle range of seriousness. The appropriate sentence for the charge of malicious wounding, after consideration of the mitigating factors is one of imprisonment for 18 months. The appropriate sentence for the charge of assault occasioning actual bodily harm is 14 months.

Applying the discount for the utilitarian value of the plea the offender is sentenced to imprisonment on the charge of Malicious Wounding for a minimum term of 44 weeks or 11 months with an additional term of 22 weeks or 5 months 2 weeks during which the offender may be released on parole subject to the supervision and direction of the Probation and Parole Service.

The offender is further sentenced to imprisonment on the charge of assault occasioning actual bodily harm [after applying the discount] for a period of 9 months and 2 weeks. In the exercise of my discretion and given the nexus between the commission of the two offences this sentence is to be served concurrently with the other sentence imposed this date. In accordance with the provisions of Section 45 of the Act and in light of the fact that the period of imprisonment for this offence together with the order that it be served concurrently with the other sentence will result in this sentence expiring before the completion of the non parole period for the other offence I decline to set a non parole period for this sentence.

Graeme Henson Chief Magistrate Downing Centre Local Court 15th October 2008

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