R v Danh [2009] VSCA 251

Court of Appeal (Vic)|2009-10-12|Before: MAXWELL P and COGHLAN AJA

R v Danh (Unreported, Melbourne County Court, Judge Gaynor, 19 February 2009)

CRIMINAL LAW - Appeal - Sentence - Recklessly causing serious injury - Sentence three years six months, non-parole period two years - Whether adequate weight accorded to plea of guilty, remorse - Whether adequate weight accorded to effects of appellant's acquired brain injury - Whether manifestly excessive - Utility of sentencing statistics - Prosecutor's assistance on sentencing range - DPP v Maynard - ; - Appeal dismissed.

1 I will ask Coghlan AJA to deliver the first judgment.

2 On 19 February 2009, the appellant, Peter Danh, pleaded guilty in the County Court at Melbourne to causing serious injury recklessly, theft, and possession of a drug of dependence (amphetamine).

3 He was sentenced to be imprisoned for three years and six months on the first count, and for one month on each of the other two counts. The sentences on those counts were ordered to be served concurrently. A non-parole period of two years was fixed.

4 The appellant sought leave to appeal against the sentence on count 1, causing serious injury recklessly. Leave was granted on 30 April 2009.

1. In all the circumstances, the sentence imposed on count 1, the total effective sentence and the non-parole period are manifestly excessive.

2. The sentencing judge erred in her Honour's treatment of the appellant's pleas of guilty.

6 The circumstances of the offending are that at about 8.30 pm on the night of 29 March 2008, the appellant went to Mehjit India Restaurant in Corrigan Road, Keysborough. He asked to use the phone and the proprietor gave him 40 cents to use the pay phone. The appellant left the restaurant and used the mobile phone of a customer who was outside the restaurant. The appellant left, but returned at about 9.00 pm; he attempted to steal some money from a dish which had been provided for tips. The proprietor checked the till, then let him have that money and told him to leave. On the way out, he stole a collection tin from the counter. This act was seen by Mr Bruce Hooper, the victim of count 1, who followed the appellant out of

7 At about 10.00 pm, the appellant returned to the car-park outside the restaurant where Mr Hooper was having a cigarette. Mr Hooper tried to apprehend him and said 'You can hang around and wait for the cops because they're on their way'. When the appellant tried to leave, Mr Hooper grabbed him by the jacket.

8 What then followed was described by the prosecutor in his opening:

The accused punched Mr Hooper in the face causing a scratch. He also punched him in the chest and hit him three times in the left side of the chest with his right hand. The accused was seen to be holding a blade in his right hand which he used to stab Mr Hooper twice to the right side of his chest causing a puncture wound 1-2 cm long and a 12 cm long laceration. The accused kicked and struggled throughout the incident and it took a number of people to restrain him before Police arrived.

On arrival Police arrested the accused. In his possession were the following items:

a half pair of scissors (placed on the top of the bag he had been [seen] carrying by a witness); 2. a Wiltshire paring knife with separate sharpening sheath (in his bag);

a small pair of black handled wire cutters/pliers (in his bag);

another half pair of scissors (in his left hand pants pocket); 2. drug paraphernalia; 3. small deal bag of amphetamines (in his bag).
Mr Hooper was conveyed by ambulance to The Alfred Hospital where he was treated for a minor scratch to the right cheek, a deep laceration to the left chest (10-12 cm long and 1 cm horizontal), a smaller puncture wound to the left chest 1-2 cm long, and two minor puncture wounds each less than 1cm long to the right side of the chest. Mr Hooper received a number of internal stitches and 20 external stitches for the long laceration, and two stitches for the left side puncture wound. He was discharged from hospital the following day but [was] unable to return to work for two weeks.

10 Although there was no Victim Impact Statement from Mr Hooper, he had suffered a heart attack about 11 months prior to the incident and was also suffering from depression.

11 It seems that the appellant, who had been charged with intentionally causing serious injury and its various alternatives, pleaded guilty at the committal on 7 October 2008 to the present offences and he was committed on the hand-up brief.

12 There were a number of arguments advanced under this heading. They may be briefly summarised as the circumstances; the nature and consequences of the injury; early plea and remorse; the appellant's acquired brain injury; and prevailing sentencing practice.

13 The first two matters involve a consideration of the objective seriousness of the offence.

14 It is submitted on behalf of the appellant that the offending was not premeditated, and that is so. It was, however, a violent response to an attempt to detain him until the police arrived. Viewed objectively, this is a reasonably serious example of the crime of causing serious injury recklessly. Although the injuries were largely superficial, the long cut which required internal sutures and 20 external sutures, and which kept the victim off work for 20 days, speaks for itself. There could never have been any debate about whether or not serious injury had been caused. The offence involved the use of a weapon on an unarmed man, in a public place.

15 The appellant did plead guilty at an early stage and must be given the benefit of that, but did so in circumstances that the charge of intentionally causing serious injury was not then persisted with.

16 As to the crime of causing injury recklessly, it is difficult to see any available defence, and the utilitarian value of the plea has to be looked at in that light.[1] I will say more about that in relation to ground 2.

17 The brain injury suffered by the appellant was significant and her Honour gave it great weight. It was of significance in a number of ways. Her Honour made reference to principles 1, 2 and 5 set out in R v Verdins.[2] Those principles are:[3]

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following ... ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

...

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

...

18 The appellant had suffered a number of injuries in a motor car collision in July 2005. There were two medical reports, one from the Alfred Hospital and one from Cedar Court, which dealt with the immediate consequences of that collision. For present purposes, the importance of the collision was that the appellant suffered a closed head injury which caused him permanent brain damage.

19 A report from Mr James Drury, a clinical neuropsychologist, was also tendered on the plea.[4] Mr Drury reported that, although the appellant would have been 'estimated to have been of low average optimum intelligence ability'[5] at the time of the report, he had 'verbal performance and full scale IQs within the borderline range'.[6]

20 Of the features which represented a change in functioning for the appellant, the following matters were listed:

fluctuating attention and concentration;
below average attention to visual detail;
below average psychomotor processing speed;
below average auditory immediate recall and working memory;
below average spatial immediate recall;
blow average verbal new learning ability, delayed recall and recognition memory; and
below average visuo-spatial recent-memory.

21 At the time of the offending, the appellant was using cannabis, benzodiazepines and heroin (count 3 related to possession of ice).[7] Mr Drury observed:[8]

In relation to the current assessment, there would have been no drug effect influencing his test results, as he had been incarcerated for approximately 10 months. Even with the absence of any drugs in his system, he continues to demonstrate very limited reasoning and judgement skills. He is only capable of thinking at a concrete level, with limited capacity to evaluate cause and effect, and this is consistent with the nature of his organic damage, compounding his modest pre-accident cognitive ability.

His limited reasoning, in addition to his inconsistent memory and new learning ability and his fluctuating attention and concentration, is likely to result in difficulty processing information on a reliable basis. The additional effect of his drug use would most likely compound his deficits. It is uncertain as to whether any long-term organic damage has, in fact, been sustained from the drug abuse, and this may well not have been the case. The short-term effect of the drugs at the time of the assault, however, would have been very significant, particularly given that they were acting on his brain which already had clearly defined damage from his severe head injury.

Given that he was under the influence of cannabis, benzodiazepinc and heroin at the time of the assault, it does not surprise me that his behaviour would have been erratic and violent, as his reasoning and judgement skills would have been even further compromised than they are currently (i.e. in the absence of drugs).

He told me that he realises that he acted inappropriately on the spur of the moment, but that he was "not in the right frame of mind" at the time. He expressed a great sense of regret that he has let down his parents who have always remained supportive of him, and he hopes to show them in the future that he can take care of himself, although acknowledging that he needs some guidance to do so.

He stated that he was not aware of why the victim approached him in the first place. He stated "I shouldn't have reacted that way, but it was spur of the moment when he came up to me and I thought he'd attack me, and I wasn't in the right frame of mind["] (due to the effects of the drugs).

23 In her reasons for sentence, her Honour made detailed reference to the report and quoted the final paragraph of it, which said:[10]

Whilst not excusing his behaviour in March 2008 his actions were determined to a moderate degree by various factors outside his control including his pre-existent cognitive capacity with limitations in his reasoning ability and also by his organic brain damage. The acute affect of his drug abuse is a further factor, but of his own volition. But it is encouraging that he recognises his limitations and future overall recovery is likely to be enhanced by positive treatment through counselling and hopefully through subsequent employment rather than by continued incarceration. Unfortunately his organic brain damage is permanent and so he will always struggle to some degree with his memory and concentration lapses and with his reasoning ability and so ongoing arm's-length support from family and possibly a counsellor might be required to assist him with routine activities of daily living.

24 Although not adverted to on the plea or dealt with by her Honour, the appellant's prior convictions have to be viewed in the light that they almost all occurred before the appellant sustained his brain injury.[11] That consideration was, however, relied upon before us. It may be that because of principle 1 set out in Verdins, that matter does not need to be dealt with separately in cases of this kind.

25 Counsel for the appellant has referred the Court to the Sentencing Advisory Council Snapshots No 13 and No 40.[12] The median sentence is two years. The difficulty which arises out of the use of that material was pointed out by this Court in DPP v Maynard,[13] when the Court said:[14]

By reference to both the statistics and to a number of what were said to be comparable cases it was submitted by counsel for the respondent that sentences of four years' imprisonment have been imposed for the offence of rape and that this indicates that the sentence imposed in the present case was within the range of sentencing options available to the sentencing judge.[15] In our view, however, such an argument demonstrates why care must be taken when making comparisons between individual cases and in using statistics. Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.

26 This case is one which can most usefully be looked at on its own facts, and by considering what range of sentence might have been imposed were it not for the special features of the case.

27 The appellant has two prior convictions for this offence.[16] They occurred in 1997 and 2000. The appellant had been sentenced to six months' imprisonment for the first offence and 12 months' imprisonment for the second. It is true to say that the appellant's criminal history after 2000 is not particularly bad.

28 If he had to be sentenced without the discounting factors, although the prior convictions are old, he must have received a sentence much higher than three years six months out of a maximum of 15 years. It also seems to me that, in the absence of the plea, he would have received a sentence much greater than five years.

29 The appellant is now 31 years of age. His insight, remorse and prospects for rehabilitation are guarded having regard to his brain injury and his addictions in the past.

30 The reasons for sentence are careful and detailed. Although her Honour did not deal with the question of what weight was to be given to the prior convictions, she did give weight to the Verdins principles.

31 The ground of manifest excess has been addressed by the President as follows:[17]

The "range" for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

32 I am not persuaded that this sentence is one which no reasonable judge could have imposed. In my opinion, ground 1 is not made out. Ground 2 was not

persisted with before us. I would dismiss the appeal.

33 I too would dismiss the appeal, for the reasons which his Honour has given. I wish to add just two things. First, I wish to associate myself with his Honour's reference to the careful and detailed reasons given by the sentencing judge. In my experience this typifies the careful and conscientious work which sentencing judges in this State do when faced with this all-important and very challenging task. As I said in R v Wyley,[18] this Court will be reluctant to intervene on the manifest excess ground where the sentencing task has been carried out in this fashion:[19]

When a sentencing judge has carefully and conscientiously addressed all the relevant matters and has undertaken the necessary task of weighing up the competing factors, this Court will be reluctant to intervene. A sentence appeal is not - and cannot be allowed to become - a re-hearing on the merits. The risk with the ground of manifest excess is that it tends to lead in exactly that direction. This Court will only intervene where the judge has gone clearly or demonstrably wrong.

34 The other matter I wish to highlight is the fact that the prosecutor informed the sentencing judge that she had instructions on sentencing range, and asked the judge whether that would be of assistance. The following exchange took place:

PROSECUTOR: Your Honour, I do have some instructions on range of sentence. Would that assist, Your Honour?

HER HONOUR: Yes, that's fine.

PROSECUTOR: I'm instructed that a total effective sentence of between three to four years is within the range appropriate for this offending, with two years to two years six months range for a non-parole period.

HER HONOUR: That's pretty much what I had in mind anyway, I have to say.

35 In the light of what the majority said in R v MacNeil-Brown; R v Piggott,[20] it is

notable in my view that the prosecutor had instructions in advance on sentencing range and made a helpful submission to the judge. It is also notable that her Honour said that the Crown's submission was essentially confirmatory of her own view. This illustrates very well the utility of a submission from the prosecution on sentencing range. Had the Crown's submission proposed a range different from that which the judge had had in mind, doubtless that matter would have been explored on the plea. In particular, her Honour would have wished to ascertain by reference to what matters the Crown range submission had been formulated.[21] As it happened, the submission accorded with what the judge had in mind and it was obviously of assistance to her Honour to know that.

6 mths, wholly suspended for 2 years; on 16 October 1998 having breached, was sentenced to 6 mths imprisonment to be served concurrently.

Counts 2&3 - CBO for 18mths, 80 hrs unpaid community work; on 21 September 1998 having breached, was sentenced to 4mths imprisonment on Count 1, and 1 mth each on Counts 2 & 3 to be served concurrently.

Count 2 -12 mths, 3 mths of which to be served concurrently with sentence imposed on Count 1.

Count 3 - 4 mths, 1 mth to be served concurrently with sentence imposed on Count 1.

Count 4 - fined $300 (defaulted on 10 November 2000, sentenced to 3 days to be served concurrently)

[1] R v White [2005] VSCA 186, [21] (Vincent JA):

The strength of the prosecution case against the individual and the stage at which a plea of guilty is entered are, of course, as the authorities make clear, relevant matters to be taken into account by a sentencing judge in determining the weight to be accorded to this consideration in the determination of an appropriate sentence in a given case. His Honour was entitled to have regard to these factors. Although it is not completely clear what he intended to convey by the use of the expression "a significant reduction" in the passage set out earlier, viewed in context, I consider that it can be reasonably inferred that his Honour was expressing his view that whilst the sentence to be imposed would be less than otherwise appropriate, the difference could not be substantial, particularly in a case in which he found no reliable indication of remorse. He certainly did not suggest that no weight would be accorded to the appellant's plea and the sentence imposed is not itself suggestive of the possibility that inadequate consideration was attributed to this factor. I am unpersuaded that, in the particular circumstances of the case before him, his Honour fell into error on this aspect.

[4] Report of Mr James Drury dated 19 January 2009.

[10] R v Danh (Unreported, Melbourne County Court, Judge Gaynor, 19 February 2009), [23].

[11] See R v Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan J, Dawson, Toohey JJ).

[12] No 13 Sentencing Trends for Causing Serious Injury Recklessly in the Higher Courts of Victoria 2000-2001 to 2004-2005. No 40 Sentencing Trends for Causing Serious Injury Recklessly in the Higher Courts of Victoria 2002-2003 to 2006-2007.

[15] Referring to R v GJ [2008] VSCA 222; R v Alexander [2007] VSCA 178 and R v Cardamone [2007] VSCA 77; (2007) 171 A Crim R 207.

[17] R v Abbott [2007] VSCA 32, [14].

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