R v Duong [2000] VSCA 213

9. On 20 June 2000 the appellant was granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958 and on 26 October 2000 the Registrar ordered that the grounds of appeal be amended by substituting the following grounds:

1. The learned sentencing judge erred in ordering that the sentence imposed on counts 3 and 5 be served cumulatively upon the sentence imposed on count 4.

2. The sentence was in all the circumstances manifestly excessive.

14. Before I consider each of these grounds, I will summarise briefly the circumstances which formed the basis of the three counts. On the evening of Saturday, 31 July 1999 the appellant and his co-offender, Tho Le ("Le"), attended a birthday party in Yarraville. Each of the three victims also attended the party. In the course of the evening, an argument arose about the behaviour of one of Le's friends, Giang. Eventually, Le and Giang left the party. The appellant was not involved in this interaction and it seems that he also left the party, albeit separately, at or about that stage. There was no suggestion by the Crown that the appellant knew the victims. Le and Giang made their way to the Yarraville railway station and were followed by a group from the party which included the three victims.

17. The group joined Le and Giang on the city-bound platform of the station. Some of the group continued to remonstrate with Giang. Using a mobile telephone, Le called the appellant, who was then in a billiard parlour. The appellant had no hesitation in responding to the call for help and went straight away with three of his friends to the station, where he met Le and Giang. By this time the two groups had separated. Le and the appellant and their friends walked towards the group which included the victims. On the ramp down from the platform Le approached one of the victims and, after a brief exchange, punched him in the face with a clenched fist. Thereupon a fight erupted between the two groups. During the fight, the appellant produced a tomahawk that he had brought with him and struck the three victims. He also inadvertently struck and injured one of his own friends. The fight did not last long - estimates varied between 30 seconds and three minutes. Each victim was, however, seriously injured and was taken to hospital. One victim was struck a severe blow on the left parietal region of his skull and there is some doubt as to whether the blow actually fractured it, although his Honour, in his sentencing remarks, seemed to doubt that. Another victim sustained a deep cut to the neck and a fractured elbow. The third received significant cuts to his face. The appellant himself drove his injured friend to the same hospital, and later disposed of the tomahawk at the local tip. On 8 August 1999 he was arrested and interviewed. He made full admissions.

20. I now turn to consider the grounds of appeal. As to the first ground, once the appellant was convicted and sentenced on the first count, he fell to be sentenced as a "serious offender" within the meaning of s.6B(3) of, and Clause 3 of Schedule 1 to, the Sentencing Act 1991. Consequently, by reason of the operation of s.6E of the Act, the latter two sentences were required to be served cumulatively upon each other and the sentence on count 1 unless his Honour directed "otherwise". In this case, although his Honour did not specifically refer to s.6E of the Act, he did direct otherwise, by virtue of the fact that he directed only partial cumulation. Be that as it may, it was the submission of Mr Bourke, who appeared before us for the appellant, that his Honour erred in ordering cumulation as he did. Mr Bourke contended that the offences arose essentially out of the one transaction constituted by the same course of indiscriminate conduct, rather than as a result of three discrete targeted actions. He argued that the proper characterisation of the appellant's conduct was that of an armed, frenzied but indiscriminate participation in the melée, resulting in injuries to more than one person rather than the commission of sequential acts of a violent kind. He emphasised that, on the evidence, it is not possible to determine with any degree of certainty the order or the exact circumstances in which the blows were struck. Similarly, there was no evidence that the appellant specifically sought out the victims for punishment. Counsel submitted that his Honour failed to consider that the circumstances giving rise to the discrete convictions were so closely related and interdependent that it could be reasonably said of them that they arose out of one transaction and called for concurrency. In this respect, Mr Bourke relied on what was said by this Court in R. v. O'Rourke[1] by Winneke, P., Brooking and Callaway, JJ.A. It is important to note, however, that the Court said in that case[2] that:

"It should not be thought that we are expressing the view that it is an immutable principle of sentencing that, where an offender has been found guilty of committing a series of sexual or violent acts on the same victim during the same episode, he or she is always bound, wholly or partially, to cumulate the penalties. There is not in our view any such principle of sentencing. Each case must depend on its own facts."

24. Nevertheless, the Court did recognise that where the circumstances in which the offences were committed are so intertwined and interdependent that it can be reasonably said that they arise out of the one transaction, concurrency is ordinarily called for.

27. In my view, given the duration of the offences and the similarity in the character of the offending conduct, and the fact that they were not three separate incursions into criminal conduct, it is at least strongly arguable that the offences can be reasonably said to have arisen out of the one transaction. But, at the same time, it should be noted that the appellant's plea must mean that he intentionally delivered a blow to the three separate persons, intentionally causing them serious harm. It is true that his Honour did not state in terms in his sentencing remarks how he constructed the sentences in light of the sentencing regime prescribed by Parliament and the common law (as to which see the observations of Winneke, P. in R. v. Lomax[3]), or that he considered that the offences arose out of, or in the context of, the one transaction. But in my view, given the material before his Honour, it must have been obvious to this experienced judge that the offences did arise out of the melée. Moreover, in my view, his Honour's direction that there be partial concurrency in the sentences reflects his recognition that the offences essentially arose out of the one transaction. Thus, although it would have been preferable if his Honour approached the task of cumulation in a different way, the end object to be achieved would have been the same, namely, to construct each sentence so as to reflect the crime involved and a total sentence that properly reflected the totality of the appellant's criminal conduct. Mr Bourke properly agreed that, if the total effective sentence is relevantly appropriate, the mere fact that there may have been a more appropriate way of constructing it does not constitute a sentencing error. Thus, a better approach may have been for his Honour to impose a sentence of four years' imprisonment on the most serious offence, count 3, three years' imprisonment on count 4 and four years' imprisonment on count 5, and then cumulate one year of the latter sentence on the sentence on count 3, thereby giving a total effective sentence of five years. Be that as it may, it was open to his Honour to construct the sentence in the way he did to arrive at a total effective sentence of five years, which, for reasons I give later, was within the range of sentences properly available to him. On any view, the appellant's conduct was most serious. It was relevantly unprovoked and vicious and endangered the lives not only of the members of the group of which the three victims were members, but also his comrades. The appellant brought his weapon and used it for the purpose of inflicting injury on others, and he succeeded in that aim. The total effective sentence must be viewed in the context of, inter alia, that intentional conduct and the maximum term of imprisonment fixed by the legislation in relation to the offences to which the appellant pleaded guilty.

30. Thus, in my view, ground 1 has not been made out.

33. I now turn to consider the second ground of appeal. Mr Bourke pointed to a number of matters which he contended show that the sentence is manifestly excessive. He submitted that the appellant was 25 years of age at the time of the offences and had never been imprisoned. Upon his arrest, he co-operated with the police in making full admissions and attempted to find the tomahawk. He pleaded guilty at the earliest opportunity, was remorseful, and had no prior convictions involving violence. Mr Bourke argued that the three offences occurred in a very short time and as part of one course of conduct. He emphasised that the appellant attended the railway station in response to a call from Le, who had told him that his life was in danger. He believed that Le and Giang were heavily outnumbered. Mr Bourke also contended that, whilst the appellant admitted that he expected serious injuries to result from his actions, the actual injuries were more serious than he would have expected. Moreover, the appellant's conduct was, said Mr Bourke, frenzied and indiscriminate, rather than calculated to cause a particular person particular harm, although that particular submission seems to stand in conflict with the admissions made by the appellant. In any event, in all the circumstances, Mr Bourke submitted, the sentence is obviously too severe.

36. As has been said many times, the claim that a sentence is manifestly excessive does not admit of much argument. The question is not whether this Court would have imposed the sentence that was imposed, but whether it was within the range of sentences properly available to the sentencing judge. In my opinion, the sentences imposed by his Honour on the appellant could not be said to be outside that range. The attack was vicious and was made pursuant to an intention to cause serious injuries to the victims. It was fortunate that a fatality did not occur as the result of his conduct. For my part, in view of the weapon with which the appellant came armed to the station and the use to which he put it in connection with the victims, I cannot see any basis upon which he can now say that he did not expect to inflict the injuries he in fact caused to his victims. It is true that he admitted fully his involvement in the offence and co-operated with the police, but it is also the case that he arrived at the station prepared to use the tomahawk, a weapon which he himself described in his interview with the police as "dangerous". He also acknowledged that the manner in which he used it was life-threatening.

39. It is plain that the learned sentencing judge took into account in his sentencing considerations the appellant's plea of guilty and the "frankness of [his] dealings with the police" and noted that the appellant did not have any prior convictions for crimes of violence, although his Honour regarded the antecedents

as demonstrating either unwillingness or inability by the appellant to avail himself of the rehabilitation alternatives which were provided to him. In my view, his Honour was justified in making that observation. His Honour's task was to weigh the mitigating factors, including the appellant's personal circumstances, against the aggravating matters such as the criminality of the appellant's conduct, the predictability of its consequences for the victims and the seriousness with which the community treats such conduct as is reflected in the maximum term of imprisonment of 20 years prescribed for this offence by the legislation. Moreover, the principles of general and specific deterrence were important considerations in the sentencing disposition in this case. The individual sentences and the total effective sentence imposed by his Honour were well within the range of sentences properly open to his Honour, and the non-parole period is, in my view, if anything, generous.

43. In all the circumstances, it is my opinion that the second ground of appeal has not been made out.

46. It follows that, in my view, the appeal should be dismissed.

50. I agree with the conclusions expressed by Chernov, J.A. and I would subscribe to his Honour's reasons for reaching them.

58. The order of the Court is that the appeal stands dismissed.

[1] [1998] 1 V.R. 246 at 254.

[3] [1998] 1 V.R. 551 at 554.