Court of Appeal (Vic)|2011-10-27|Before: Mr P, Michael J, Weinberg JA, Ashley JA

Quach v The Queen [2011] VSCA 323 (27 October 2011)

DPP v Quach (Unreported, County Court of Victoria, Judge Patrick, 8 December 2010)

1 I agree with Weinberg JA, whose reasons I have had the opportunity of studying in draft.

2 More extensive material was provided on the appeal than on the hearing by me of the leave application. It satisfactorily explains the large difference between the sentence passed on the appellant for intentionally causing serious injury and the sentence passed on the co-offender for recklessly causing serious injury.

3 In November 2010, the appellant pleaded guilty, in the presence of the jury, to one count of armed robbery (count 1). He pleaded not guilty to a count of intentionally causing serious injury (count 2) but guilty, once again in the presence of the jury, to an alternative to that second count, recklessly causing serious injury (count 3). The Crown did not regard the plea of guilty to count 3 as sufficient. Accordingly, the appellant stood trial, the only issue being whether he was guilty of intentionally or recklessly causing serious injury. Ultimately, the jury convicted him of the more serious form of causing serious injury.

4 The appellant was sentenced to a term of two years and six months' imprisonment on the count of armed robbery, and four years and six months' imprisonment on the count of intentionally causing serious injury. Twelve months of the sentence on the count of armed robbery was made cumulative upon the sentence on the count of intentionally causing serious injury. The total effective sentence was, therefore, five years and six months. A non-parole period of three years and six months was fixed.

5 The maximum penalty for armed robbery is 25 years' imprisonment, and for intentionally causing serious injury 20 years' imprisonment.

6 The circumstances surrounding the commission of these offences may be briefly summarised. In the early hours of the morning of Sunday 26 July 2009, the

appellant and a co-offender, Cuong Ngyuen, attended at a 7-Eleven convenience store in Elizabeth Street, Melbourne.

7 Nguyen stood watch in the doorway. He waited at the front sliding door, keeping it open with his foot and hand whilst looking up and down Elizabeth Street to see if anyone was approaching. There were no customers in the store at the time of the robbery.

8 The victim in this matter, Rohit Kumar, was the store attendant at the time. He was working alone. He had been tidying up in the general vicinity of the counter. As the appellant entered the store, Kumar was moving back behind the counter towards a staff only area. The door to that area was kept locked. Kumar entered a code and went through the door. The appellant followed closely behind, and prevented Kumar from shutting the door behind him.

9 There was then an altercation. The appellant, who was armed with a knife, stabbed Kumar once under the arm, inflicting a serious wound to his chest. The men continued to struggle. The appellant demanded money, and Kumar then opened the till. The appellant seized $663.55 in cash, and ran out of the store. He and Nguyen then fled.

10 Kumar was taken to St Vincent's Hospital. He had a six centimetre wound to the chest which had resulted in arterial bleeding. The wound required 17 stitches, including two to stop the arterial bleeding.

11 The appellant gave evidence at the trial. He did not deny causing serious injury to Kumar, but claimed that it must have occurred during the course of their struggle. His evidence was that he had not, at any stage, intended to cause serious injury. As the judge below observed, it was clear from the jury's verdict that they must have accepted Kumar's account, in preference to that of the appellant. Kumar's evidence was that the appellant had stabbed him almost immediately after entering the counter area, and before any struggle took place.

12 The appellant was arrested about a week after the incident. He admitted having robbed Kumar in order to obtain money to pay drug debts. He also admitted that he had purchased a knife earlier that day, and had intended to use it in the course of the robbery. However, he maintained that he had not intended to stab Kumar, and that the wound had been inflicted during the course of a struggle.

13 The appellant said, in his evidence at trial, that he had a heroin habit costing between $150 and $300 a day. He said that he owed $2700 for drugs, and that he was desperate to repay that debt.

14 Some months before the appellant stood trial, Nguyen had pleaded guilty before the same judge to one count of armed robbery and one count of recklessly causing serious injury. In May 2010, her Honour sentenced Nguyen to 18 months' imprisonment for the armed robbery, and nine months' imprisonment for recklessly causing serious injury. Three months of the sentence on the serious injury count was made cumulative upon the sentence on the armed robbery count. That made a total effective sentence of 21 months. A non-parole period of nine months was fixed.

15 Turning again to the appellant, when her Honour sentenced him she noted that he was aged 24. He had been born in Australia and was the youngest of three children. His parents had come to this country from Vietnam in 1978. His father had for many years been a public servant. The father was now a director of a trading corporation.

16 The appellant's parents had separated in 1995. Originally, he had been cared for by his father. However, when aged about 15 he had moved to live with his mother.

17 The appellant had successfully completed VCE. He had attempted tertiary studies, which he did not complete. It appeared that he had had difficulties with drug use, including heroin addiction, from the time that he was a teenager. His father had taken him to Vietnam for a period in order to wean him off drugs. However, he had relapsed after returning to this country.

18 The appellant admitted several prior convictions. Essentially these were all drug-related. There were no convictions for offences of violence.

19 Evidence of good character was led on the plea. It was submitted on the appellant's behalf that his offending was out of character, and that he was genuinely remorseful. There was also evidence that he had a good work ethic and good prospects of rehabilitation. It was submitted that although the appellant could not bring himself to plead guilty to intentionally causing serious injury, he recognised fully the 'dreadful ordeal' to which he had exposed the victim of his offending. It was said that he was extremely sorry for his actions.

20 It was also submitted that the appellant's youth and prospects of rehabilitation should lead to the imposition of a lesser sentence of imprisonment than might otherwise be expected. Reference was made to R v Mills[1] in that regard.

21 The question of parity[2] was also addressed on the plea. It was conceded that Nguyen was less culpable than the appellant, particularly in relation to the causing serious injury offence. However, it was submitted that Nguyen's sentence for his involvement in that offence should be viewed as something of a benchmark.

22 The Crown put forward a sentencing range of between five and a half and seven years as a total effective sentence, with a non-parole period of between three and four years.

23 The judge observed in the course of her sentencing remarks that this was very serious offending. That was particularly so given that an armed robbery had been committed upon a 'soft' target, namely a person working alone at night in a convenience store. She noted that general deterrence was important in the appellant's case, particularly given that there had been a degree of planning in the commission of the offence.

24 Her Honour accepted that the appellant's conduct, in relation to the stabbing of the victim, had not been pre-meditated. However, the evidence was that he had purchased the knife earlier that day specifically in order to use it in the course of the robbery. Moreover, her Honour was satisfied that the appellant was prepared to use the knife if he met resistance. The injury to Kumar was clearly serious, and potentially fatal. The level of moral culpability was high.

25 The judge balanced a series of mitigating factors against the seriousness of the offending. Her Honour referred specifically to the plea of guilty, in the presence of the jury, in relation to count 1. She also referred to the appellant's remorse, youth, and prospects of rehabilitation.

26 When it came to parity, her Honour described the appellant's role in relation to both the armed robbery and the infliction of serious injury as 'very much greater' than that of Nguyen. In addition, she noted that there were mitigating circumstances peculiar to Nguyen that did not apply to the appellant. However, she accepted that, given the appellant's youth and prospects of rehabilitation, a shorter than usual non-parole period would be appropriate. She then sentenced the appellant as earlier indicated.

27 The appellant sought leave to appeal on two grounds - parity and manifest excess, both in relation to count 2. However, he was refused leave on the manifest excess ground, and granted leave only on the parity point.

28 Plainly, there is a considerable disparity between the sentence of four years and six months imposed upon the appellant for intentionally causing serious injury, and the sentence of nine months imposed upon Nguyen for recklessly causing serious injury.

29 The sentence imposed upon the appellant in that regard is six times greater than that imposed on Nguyen. A difference of that order must be carefully scrutinised.

30 Nonetheless, there were plainly a number factors distinguishing the level of culpability of each offender.

31 First, the appellant was dealt with for intentionally causing serious injury, while the respondent was dealt with for the lesser offence of recklessly causing serious injury. The sentencing statistics suggest a median sentence of three years and six months for the intentional offence,[3] and only two years for the reckless offence.[4]

32 Secondly, the appellant pleaded not guilty to the serious injury count of which he was convicted, thereby necessitating a trial. Nguyen, on the other hand, pleaded guilty to the serious injury count, and was entitled to additional mitigation accordingly.

33 Thirdly, the appellant was the instigator of the armed robbery which led to the wounding. Nguyen played a significantly lesser role in that regard. The appellant kept the entire proceeds of the robbery for himself.

34 Fourthly, the appellant inflicted the serious injury. Nguyen's role was confined to keeping watch during the course of the robbery.

35 Fifthly, when sentencing Nguyen the judge was not satisfied that he had any knowledge of the appellant's possession of a knife until the very moment that he brandished it during the course of the robbery. The appellant, on the other hand, had purchased the knife for use in the robbery, and had concealed it on his person.

36 Sixthly, the case against Nguyen with regard to the recklessly causing injury offence was at best problematic. In those circumstances, his willingness to plead guilty demonstrated considerable remorse. The appellant, on the other hand, faced a strong case on the serious injury count, and chose to contest it.

37 Seventhly, Nguyen was only 21 when sentenced. The appellant, on the other hand, was aged 24 when sentenced. Nguyen's youth had particular significance, given that he would have been a candidate for a Youth Justice Centre disposition had he not turned 21 shortly before being sentenced.

38 Eighthly, Nguyen suffered from Asperger's Syndrome. Though the judge found that this did not enliven Verdins[5] to the fullest extent, she accepted that it would increase his vulnerability whilst in prison, and make a custodial sentence more burdensome for him. There were no Verdins considerations in relation to the appellant.

39 Ninthly, the appellant had prior convictions. Nguyen did not have any prior convictions.

40 Tenthly, Nguyen had rehabilitated himself whilst on bail, having detoxified from his heroin addiction. The appellant too had rehabilitated, but had done so whilst in custody. Accordingly, his prospects of rehabilitation had to be somewhat more problematic than those of Nguyen.

41 The principles that govern the requirement that there be parity in sentencing between co-offenders are well settled. That requirement is based on the notion of equal justice, and the need for consistency in sentencing. It may, in an appropriate case, provide a basis for reducing a sentence that is otherwise within the available range.

42 A disparate sentence can be challenged on appeal on the ground that the difference between the sentences imposed upon the appellant and a co-offender is manifestly excessive, such as to give the appellant a 'justifiable sense of grievance'.[6]

43 At the same time, there are cases where the principle of equal justice simply does not arise. It is important to consider, in every case where parity arises, the relative criminality of the co-offenders. There is a need to reflect a disparity in culpability. Sometimes, even co-offenders who are dealt with for precisely the same offence will receive significantly different sentences, as for example where their respective antecedents and prospects for rehabilitation are distinguishable. What is important is that like cases are treated alike, but that cases that are not alike are treated differently.

44 In my opinion, there were real and substantial differences between the appellant's culpability in relation to the serious injury offence, and Nguyen's much less central involvement in the commission of that offence. There were also matters personal to each that justified treating the two offenders quite differently.

45 If the appellant harbours a grievance regarding the sentence he received for having stabbed Kumar, it is not, upon careful analysis, 'justifiable'. I am not persuaded that the disparity between the appellant's sentence for that offence, and that of Nguyen, is such as calls for the intervention of this Court. I would dismiss the appeal.

[2] Parity, in the strict sense, may not have arisen given that the appellant was charged with intentionally causing serious injury and Nguyen with the lesser offence of recklessly causing serious injury. For practical purposes, however, it may be assumed that although they did not commit the 'self-same crime' the 'broad concept of equal justice' which 'underpins ... parity' required an appropriate measure of parity in this case. See, generally, Farrugia v The Queen [2011] VSCA 24, [8]-[10].

[3] Sentencing Advisory Council, Parliament of Victoria, Sentencing Snapshot No. 93, 'Causing serious injury intentionally' (March 2010).

[4] Sentencing Advisory Council, Parliament of Victoria, Sentencing Snapshot No. 94, 'Causing serious injury recklessly' (March 2010).

[6] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; and R v Taudevin [1996] VICSC 7; [1996] 2 VR 402.

Quach v The Queen [2011] VSCA 323

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Judgment (56 paragraphs)

Quach v The Queen [2011] VSCA 323 (27 October 2011)

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Cases Cited (3)