R v Chong [2008] VSCA 119

1 For the reasons given by Osborn AJA I agree that the appellant's appeal against sentence should be dismissed. Because the appellant is a youthful offender, this court would normally place considerable emphasis on his rehabilitation. However the brutality of the attacks, all of which involved the use of weapons, and the serious harm caused to the victims, requires the imposition of a sentence which denounces the appellant's conduct and places considerable emphasis on the principles of specific and general deterrence. In my opinion, his Honour's sentencing reasons took account of all relevant sentencing considerations. Further, the orders for cumulation which his Honour made in relation to counts 2 and 3 were lenient, having regard to the circumstances of the attacks, the shocking injuries inflicted on Abucar and Kyobe and the fact that the appellant had to be sentenced as a serious violent offender.

2 I have read the draft judgment of Osborn AJA and agree with him that this appeal should be dismissed.

3 I wish to add this only in relation to the ground of manifest excess. As pointed out by Osborn AJA, the appellant engaged in four vicious assaults of persons over a period between August 2005 and March 2006. All of the attacks were carried out with a weapon and were callous and brutal in the extreme. Regrettably violence of this type, often committed upon innocent victims in the streets of Melbourne in the early hours of the morning, is now not uncommon. The nature and seriousness of the offences were such that the principles of general and specific deterrence and the need for the Court to express denunciation of the crimes assumed considerable significance for sentencing purposes. The judge was correct in saying that those principles were 'imperative' in the circumstances before him.

4 As pointed out by counsel for the appellant and as clearly accepted by the sentencing judge, the appellant was a 'moderately young offender' whose prospects

of rehabilitation were good provided that he abstain totally from the use of drugs, and I might add the excessive use of alcohol. Indeed these matters were of relevance and were given careful consideration by the sentencing judge. Had the appellant been presented before the sentencing judge on one count alone, or perhaps even on two counts, it may have been appropriate in all the circumstances to have regarded those matters as primary considerations in the sentencing task. However, in the circumstances of this case it can hardly be said that the seriousness and real consequences of the offending actions, particularly those the subject of counts 2, 3 and 4, may not have been appreciated fully by the appellant by reason of his immaturity.

5 As stated by the Court in DPP v SJK and GAS[1] the factors of youth and rehabilitation, important as they are, constitute only 'some of a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law'. In my view this is such a case.

6 On 19 February 2007 the appellant was sentenced in the County Court in respect of four counts of intentionally causing serious injury; first, on 28 August 2005 to Vincent Ng; secondly, on 11 September 2005 to Salah Abucar; thirdly, on 11 September 2005 to Ronald Kyobe; and fourthly, on 5 March 2006 to Khalifa Yusuf.

7 The sentencing judge imposed a penalty of 3 years' imprisonment on count 1; 6 years' imprisonment on counts 2 and 3 respectively; and 7 years' imprisonment on count 4. He ordered that 18 months of the sentence on count 1, 2 years of the sentence on count 2, and 2 years of the sentence on count 3 be served cumulatively upon each other and upon the sentence imposed on count 4. The total effective

sentence was 12½ years' imprisonment and the appellant was ordered to serve 8 years before being eligible for parole.

8 The appellant now appeals these sentences on three bases:

(1) His Honour erred in determining the appellant did not suffer from a serious psychiatric illness;

(2) His Honour erred by sentencing the appellant as a serious offender on count 1; and

(3) The sentences imposed are each manifestly excessive.

9 The appellant was born on 6 August 1983. He was 22 during the period in which the offences were committed and 23 at the time of sentence.

11 On 28 August 2005 he assaulted his first victim Ng in a lane off Little Lonsdale Street, Melbourne. At the time he says he was drunk and angry. He had taken Ng to the lane in a car driven by a third person, after picking Ng up as he was walking in Bourke Street. Ng owed the appellant some $2,000 and after a dispute as to its repayment, Ng said he would repay the money as soon as possible but there was nothing more he could do.

12 The appellant then went to the car and picked up a metal tyre lever. He returned and struck Ng to the head, hands and arms while Ng attempted to protect himself. Ng fell to the ground and the appellant continued to hit him with the tyre lever and also kicked him. The appellant told Ng he had one month to pay up and then left in the car.

13 Ng was taken to St Vincent's Hospital suffering from lacerations to his right hand, a fractured middle finger, and injuries to both arms and the head. He required 15 stitches to the head. His victim impact statement also records shock and emotional trauma.

14 On 10 September 2005 the appellant attended a nightclub in Hardware Lane, Melbourne with a friend. At about 1.00 am he and his friend were asked to leave on the basis they were intoxicated and verbally abusive. Shortly after leaving, they became involved in a fight with some African males which lasted some minutes and during the course of which it appears the appellant suffered some blows. At the conclusion of the fight the appellant went to his friend's apartment in LaTrobe Street and took a meat cleaver from the kitchen. He also arranged for his brother to collect him in his car and then went out seeking to further engage with those involved in the previous fight.

15 At about 1.40 am the appellant saw the second victim Abucar in the vicinity of the corner of Queen and Little Bourke Streets. He mistakenly formed the view that Abucar was one of the African males who had been involved in the earlier fight. The appellant told his brother to stop the car and then got out and attacked Abucar, approaching him from behind and striking him once to the back of the head with the meat cleaver. He also attempted to strike him a second time but Abucar fled down Queen Street.

16 Abucar was taken to the Royal Melbourne Hospital. He had suffered an open depressed fracture of the left parietal skull bone, with associated bone contusion. The laceration caused by the cleaver was substantial and required extensive stitching. Abucar's victim impact statement indicates that these injuries affected his capacity to work as a security guard and caused him significant emotional trauma.

17 Some 15 minutes after the attack on Abucar, the appellant came across the third victim Kyobe in Hardware Lane. Once again, without provocation and mistakenly believing Kyobe to have been involved in the earlier fight, the appellant struck Kyobe to the head with the meat cleaver. In so doing he fractured Kyobe's skull and inflicted a large open wound.

18 Kyobe was subsequently taken to the Royal Melbourne Hospital in a serious condition with a gaping wound to the head and neck. He was diagnosed as having an open depressed fracture of the skull and required surgery. He was hospitalised for five days. No victim impact statement appears to have been lodged by Kyobe but it is apparent that the attack must have been emotionally shocking and traumatic.

19 On 5 March 2006 at about 3.40 am the appellant's fourth victim Yusuf was walking along Little Bourke Street with two friends. Yusuf had been drinking in a nightclub and was intoxicated.

20 The appellant had also been drinking in a nightclub with friends and was a passenger in a motor vehicle passing by. As the car passed by, Yusuf hailed the vehicle and said words to the effect of 'Hi guys'.

21 The car pulled over and the appellant and those in the car approached Yusuf and his two friends. An argument broke out between the two groups and the appellant smashed a beer bottle into Yusuf's head, causing lacerations and immediate bleeding.

22 The appellant then got back in the car which was driven off, but as it moved away one of Yusuf's companions kicked the rear panel. The car then pulled up again and the appellant got out armed with a metal club lock and, in company with his two companions, attacked Yusuf.

23 The appellant bashed Yusuf to the head and upper body with the club lock and continued to attack him with his two companions as Yusuf fell to the ground and lay upon it. Yusuf was struck, punched and kicked until he was rendered unconscious. The appellant and his companions then left the scene.

24 Yusuf was taken by ambulance to the Royal Melbourne Hospital where he remained on life support until 20 March 2006. He was released from hospital to rehabilitative care on 4 April 2006. As a result of the attack upon him, he had suffered a severe closed head injury with subdural and subarachnoid haemorrhages, extensive facial fractures, a fractured skull, numerous lacerations to the hands and upper body, and extensive bruising. The injury to the brain caused post traumatic amnesia estimated to have lasted 21 days.

25 As a result of his injuries, Yusuf suffered significant ongoing cognitive deficits. As at November 2006 he was unable to drive a car and had not been able to return to his pre-injury employment as a courier. The cognitive deficits resulting from the brain injury he suffered will have a lasting impact on his lifestyle and opportunities both vocationally and in terms of leisure.

26 The reason advanced in his record of interview for the first assault by the appellant was 'just to get my money back'. At the time he was 'drunk and angry'. At the time of the second and third assaults the appellant said he was 'wasted' and 'pissed off that he had got hit earlier in the night' and wanting revenge. At the time of the fourth assault he said he was heavily intoxicated and that he was thinking of the time he got attacked and wanted revenge.

27 It can be seen that objectively each of the assaults in issue was a vicious, unprovoked attack, undertaken with a weapon capable of causing very serious injury and in the last instance undertaken in company with others. On each occasion the appellant selected the weapon for the purposes of the confrontation which ensued. It can also be seen that the last attack was particularly brutal and caused permanent and tragic consequences for the victim.

28 In R v Zullo[2] Nettle JA (with whom Winneke P and Batt JA agreed) stated:

This Court has said repeatedly that those who when disinhibited by alcohol engage in unbridled violence in public places must expect condign punishment in which the principles of general and, on many occasions, specific deterrence will play major roles.[3]

29 In the present case not only the general character of the attacks referred to in this passage raised serious questions of deterrence, but also two further specific aspects of them. The use of a meat cleaver and iron bars for the purpose of a violent assault, is a matter which raises significant issues of general deterrence affecting the safety of the public generally. Likewise, the fact that each assault involved indiscriminate attacks upon members of another race raises issues of general deterrence with respect to the safety of minority groups within our community.

30 A number of matters were advanced on behalf of the appellant on plea and accepted by his Honour:

(1) The appellant came from a difficult family background. His father died when he was four and he grew up in a situation of increasing conflict with his stepfather, leaving the family home at the age of 16.

(2) Thereafter, he shifted about but was able to maintain a good work history.

(3) As a result of his family situation he had started using alcohol and marijuana in his early teens.

(4) His stability was further adversely affected by first the suicide of a girlfriend with whom he had lived, and secondly the loss of a close friend in a car accident.

(5) By the time of this offending the appellant had developed polysubstance dependence.

(6) Nevertheless, the appellant had no prior convictions and a good work history.

(7) The offences occurred when the appellant was intoxicated by alcohol.

(8) He pleaded guilty to the offences after making full admissions, and at an early stage.

(10) The appellant is young and had applied himself to self-improvement while in custody, addressing both his substance abuse problems and the possibility of increasing his qualifications for employment.

(11) The appellant's prospects of rehabilitation were relatively good, provided he was able to continue to abstain from the use of illicit drugs.

32 The evidence of Dr Sullivan was that the appellant was of normal intellect, but that he had been polysubstance dependent, reflecting a pattern of drug and alcohol abuse. The appellant had recounted symptoms consistent with a methamphetamine induced psychotic disorder while in custody, but there was insufficient evidence to conclude he was so affected at the time of the assaults in issue.

33 The appellant did not suffer an underlying psychiatric illness, but Dr Sullivan regarded him as having some residual psychotic symptoms attributable to a methamphetamine psychotic disorder and was of the view the appellant was prone to relapse with any exposure to methamphetamines in the future.

34 Dr Sullivan described the appellant's prognosis as follows:

Mr Chong is perhaps a little unusual for offenders seen in prison in that he reports a reasonably sustained work history before this period of time, despite large amounts of substance use. He appears to have a moderate degree of insight into the negative impact of his substance use. He reported that he felt that it was appropriate that he was in prison at the time because that prevented him from continuing that substance use. He indicated that he had taken the initial steps towards addressing that by addressing an alcoholics anonymous group and by attending drug and alcohol courses and, finally, he had substantial plans for any future period of incarceration to obtain vocational qualifications and to work in the future. So, again, someone who has a substantial work history and is motivated to work in the future, someone who's reasonably willing to address his substance abuse problems and who otherwise doesn't have a significant legacy of physical or mental health problems I think has a relatively good prognosis. I would, however, add, of course, that that is entirely contingent upon continued abstinence from substance use and should he return to that than I would consequently downgrade my prognosis accordingly.

35 In the course of his sentencing remarks his Honour observed that in his view it was clear the appellant did not have a 'serious psychiatric illness' in the sense referred to in R v Tsiaras.[4] The first ground of appeal addresses this observation. The ground is not as its expression might suggest, directed to the terms of this finding, which was plainly justified. Rather, it is submitted that having regard to the decision in R v Verdins, Buckly and Vo,[5] his Honour did not properly assess the significance of the appellant's psychiatric condition for sentencing purposes. In particular it is submitted first, that the appellant's condition renders imprisonment harsher for him than it would otherwise be. I reject this submission. It is inconsistent with the picture of rehabilitation put forward by Dr Sullivan. In the absence of access to methamphetamines, the appellant's psychiatric condition is substantially free from illness. The evidence is that imprisonment has had a positive rather than a negative effect in this regard.

36 It is next submitted that the appellant's psychiatric condition makes him an inappropriate vehicle for general and specific deterrence. I reject these contentions also. There is, as I have said, no evidence the appellant was affected by psychosis at the time of the offences. The offences reflect a series of choices on different occasions in different locations, to act in a violent fashion when alcohol affected. It is precisely this sort of offence which is to be regarded as appropriately the subject of general deterrence as the statement quoted from the judgment in Zullo above indicates. Likewise, there is nothing in the diagnosis of Dr Sullivan or his prognosis, which could be regarded as rendering considerations of specific deterrence inappropriate or of little weight.

37 The true significance of the psychiatric evidence from the appellant's point of view was that which the sentencing judge accorded it. First, it provided an explanation for the underlying personality of the appellant at the time of the offences, namely that of a young man who was subject to substance dependency, which had developed in the context of a difficult early life and as such was prone to intoxication. This context bore on the appellant's moral culpability. Secondly, the psychiatric evidence supported the view that insofar as the appellant had suffered from polysubstance dependence and drug related psychosis, his prospects were good, if he could avoid future drug use and in particular future use of methamphetamine. This bore on the appellant's prospects of rehabilitation. Both matters were given weight by the judge as operating in mitigation of the penalties he might otherwise have imposed.

38 The second ground of appeal derives from the observations made by his Honour at paragraph 49 of the sentence:

Furthermore, I am required to have regard to and apply ss.6A to F of the Sentencing Act 1991. There is no doubt that you are a serious offender within the meaning of those sections. The prosecutor referred me to s.6D which requires that in determining the length of the sentence regard must be had to the protection of the community from the offender as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of your objective circumstances.

39 It is submitted the judge erred in sentencing the appellant on count 1 as if he were a serious violent offender. I do not draw the inference from this paragraph that he did. Despite the callous and vicious nature of the attack involved in count 1, his Honour imposed a sentence of only 3 years' imprisonment, being half that imposed on counts 2 and 3. He did so in respect of an offence carrying a maximum penalty of 20 years' imprisonment and in respect of which Nettle J stated in Zullo[6]:

It is said that the longest sentence ever imposed in this State for an offence of causing serious injury intentionally is ten years' imprisonment, and it has been said that it is only the most serious cases of the offence that have attracted a sentence within what is described as "the very top of the range" of between six and ten years. In the past that may have been so. When it was the case, a sentence for this offence of three-and-a-half years' imprisonment with a non-parole period of two-and-a-half years might have been within the range. But it is no longer the case. The so-called "very top of the range" of six to ten years was established when the maximum penalty for causing serious injury intentionally was only twelve years and six months' imprisonment. The maximum penalty is now almost double that amount. Now the "very top of the range" is upwards of fifteen years. (Citations omitted)

40 Whilst it is true that the sentencing judge did not distinguish in paragraph 49 quoted above, between count 1 and the subsequent counts, in my view it is clear from the circumstances as a whole and the sentencing regime to which I have referred, that he sentenced the appellant with respect to count 1 on the basis that he was not to be so sentenced as a serious offender.

41 The appellant submits that the sentences imposed were manifestly excessive having regard to:

(a) the appellant's plea of guilty following the making of full admissions;

(b) the fact the appellant had demonstrated extreme remorse;

(c) the appellant's relative youth at the time of offending and at the time of sentence;

(e) the appellant's good prospects of rehabilitation, which the evidence showed had commenced while he was in custody;

(f) the connection between the appellant's drug use and his personal history, reducing the appellant's moral culpability;[7]

Each of the matters relating to the appellant relied on, was recognised by his Honour who carefully addressed their relevance in comprehensive and balanced reasons. I do not accept that they were given inadequate weight.

42 Indeed, in my view the orders for cumulation on counts 2 and 3 were merciful, having regard to the seriousness of the assaults in issue, and the fact that they were committed by a man who fell to be sentenced as a serious violent offender.

43 The course of conduct on which the appellant embarked over a series of months, was viciously and wantonly violent. It was persisted in despite the opportunity to reflect upon the initial incidents and culminated in the brutal bashing of Yusuf which caused permanent brain damage to the victim.

44 The judge was correct to impose a sentence which reflected the necessary denunciation of the appellant's conduct, the seriousness of each of the counts in issue, the fact that the appellant was to be sentenced as a serious offender in respect of counts 2, 3 and 4, and the necessity to reflect considerations of both general and specific deterrence. Accordingly, the appeal should be dismissed.

[1] [2002] VSCA 131, [65].

[2] [2004] VSCA 153.

[3] R v Stevenson [2000] VSCA 161, [27].

[4] [1996] VicRp 26; (1996) 1 VR 398.

[5] [2007] VSCA 102; (2007) 16 VR 269.

[7] See R v McKee [2003] VSCA 16; (2003) 138 A Crim R 88, to which his Honour made extensive reference in his sentencing remarks.