R v King; R v Ngyoune [2007] VSCA 263

3 The appellant Jamie Ngyoune pleaded guilty to two sets of offences. The first comprised affray and intentionally causing serious injury. These offences arose out of the same incident in which the appellant King was involved. The second group of offences to which the appellant Ngyoune pleaded guilty occurred on 13 January 2007. These offences (taken in the order in which the sentencing judge dealt with them) were burglary with intent to steal, riotous assembly, and theft.

4 On the count of intentionally causing serious injury the appellant Ngyoune was sentenced to detention for 2 years in a youth justice centre; on the offence of affray, 1 year in a youth justice centre with 3 months of that sentence cumulative upon the initial sentence of 2 years. On the offence of burglary with intent to steal, a sentence of 1 year in a youth justice centre was imposed with a period of cumulation as to 9 months on the initial offence. On each of the offences of riotous assembly and theft, a sentence of detention for 1 month in a youth justice centre was imposed, such**

sentences to be served concurrently with that imposed on the first offence. This resulted in a total effective sentence of 3 years.

**5 The maximum penalty for the offence of affray is 5 years' imprisonment and for the offence of intentionally causing serious injury, 20 years' imprisonment.

6 At the time of the commission of the first set of offences the appellant was aged 17 and at the time the second group of offences were committed, he was 19 years old. He had no previous convictions.**

**7 The factual background, as found by the sentencing judge, was as follows. On the night of 13 May 2005 a co-offender, Abdul Tabbit, had arranged to celebrate his prospective wedding with a group of friends at a bar in Dandenong called Zeines. One such friend was George Pantazopoulos who arranged to bring with him six companions who included Justin King, Jamie Ngyoune, a youth who, for legal reasons must be referred to as SPA, as well as a Clinton Gottinger. A considerable amount of alcohol had been consumed by members of the group, although Justin King, as was his practice, had consumed only a small amount. At some point, two of the young men in the group, SPA and Jeremy Vigliarolo, left the bar to obtain something to eat. As they were walking away from Zeines, they encountered a group of three men and two women of aboriginal descent who were walking home after having themselves drunk alcohol over a couple of hours at a local hotel. This group included the victim of subsequent attacks, Mr Greg Harrison. For no apparent reason, Mr Harrison become aggressive and words and punches were exchanged. In the course of the subsequent skirmish, SPA had his jacket and T-shirt pulled off. After the scuffle concluded, SPA used his mobile phone to call Clinton Gottinger at the bar. On their return to the bar, SPA and his companion indicated to the others that they were blameless victims who had been aggressively set upon and the theft of the jacket was mentioned.

8 Instead of contacting the police, the group at Zeines Bar decided to take the law into their own hands, choosing, as the sentencing judge put it, "to act as a vigilante group". The group, including Justin King and Jamie Ngyoune, left the bar in search of Greg Harrison and his four friends who, apparently realising that trouble was pending, sought to hide.

9 A member of Greg Harrison's group was seen to enter a block of flats at 50 Princes Highway. Fuelled by alcohol, a number of the pursuers, including Ngyoune and SPA, entered that property. There was loud and frightening shouting and windows were smashed (one with the head of a broom and others with large rocks removed from a garden bed) and a garbage bin was knocked over.

10 According to the Crown opening, during this incident there were calls of: 'Fucking abos come out' and 'Fucking abos don't hide'. This angry and aggressive conduct caused some of the people in the flats to telephone the police.

11 Justin King took no part in this incident at the block of flats at 50 Princes Highway. It appears that he and some other members of the group returned to Zeines Bar before returning to the scene in a van driven by Pantazopoulos.

12 Clinton Gottinger, who had elected not to go back to the bar but had continued to search on foot, located the hiding place of Greg Harrison and commenced to chase him. Mr Harrison ran into a garden area alongside a flat in a street called McFarlane Crescent, which ran parallel to the Princes Highway. There, he found himself cornered and was angrily challenged by Gottinger. An exchange of words followed, during which time most members of the group, including Justin King and Jamie Ngyoune, arrived at the garden area.

13 At this point, Justin King punched Mr Harrison to the jaw. That punch caused him to fall to the ground. Thereafter, he was set upon, being kicked and punched and struck in the face with the metal tip of an umbrella. Both Jamie Ngyoune and SPA joined in the kicking of Mr Harrison to the head and neck region. Justin King did not physically take part in the ensuing kicking and punching by the group but was complicit in that attack either by acting in concert with, or aiding and abetting, the other participants while the attack continued.

14 After a period estimated to be of several minutes duration, Justin King urged the others to desist. At about this time, a witness Baxter intervened to put an end to the assault.

15 Neither Justin King nor Jamie Ngyoune made any attempt to assess the victim's condition, far less to call for an ambulance, although it was apparent that Mr Harrison was unconscious.

16 Jamie Ngyoune and Abdul Tabbit were among those who then joined in a quick search through the Coles Supermarket in an endeavour to locate any of Mr Harrison's friends. Justin King chose not to do so.

17 Later, Justin King attempted to dissuade SPA and Gottinger from returning to where Mr Harrison had been left. However, SPA and Gottinger did return, and found that Mr Harrison, who had been seriously injured in the initial attack upon him, was still unconscious. Gottinger dropped a heavy terracotta pot plant onto Mr Harrison's head, bringing about his death. He subsequently pleaded guilty to, and was sentenced for, the murder of Greg Harrison.

18 In his sentencing remarks, the sentencing judge found that each of the appellants had eventually co-operated with the investigating police after initially seeking to mislead them: in the case of Justin King, by attempting to blame Mr Harrison for provoking the punch to his head; and in the case of Jamie Ngyoune, by seeking to minimise the extent of his involvement in the events of that night.

19 Having recited the factual matters upon which the Crown relied, I confess to some difficulty in discerning the precise basis for either of the appellants' pleas of guilty to affray.

20 Neither the submissions nor the judge's sentencing remarks identify with any particularity the event or events constituting the affray. His Honour's only direct comment was made during the joint sentencing of Ngyoune, SPA and Tabbit, namely:**

While none of you had any direct role in his [Mr Harrison's] death, the affray you were all part of led to the major assault that two of you [SPA and Ngyoune] were part of, and that assault led Greg Harrison to the death that he suffered shortly after you left him.

21 The offence of affray has evolved over the years. This judgment is not the vehicle for any detailed analysis of that development. In Attorney-General's Reference (No. 3 of 1983),[1] the English Court of Appeal (Lord Lane CJ, Boreham and Tudor Price JJ), after considering the earlier decision of the House of Lords in R v Taylor (Vincent),[2] concluded:

... In order to establish the offence of affray in a public place, the Crown must establish that: (i) there was unlawful fighting or unlawful violence used by one or more than one person against another or others, or there was an unlawful display of force by one or more than one person without actual violence, and (ii) the unlawful fighting, violence or display of force was such that a bystander of reasonable firmness and courage (whether or not present or likely to be present) might reasonably be expected to be terrified.[3]

It is to be noted that in the Attorney-General's Reference, the Court of Appeal used the term 'bystander' to connote an 'innocent member of the public within sight or earshot of the fighting'.

22 In the Victorian case of DPP v Johnston[4] the Court of Appeal (Ormiston, Batt and Chernov JJA) confirmed that an affray could be carried out on private premises as well as in public places (citing R v Button[5]). In Johnston's case there were charges of affray (inter alia) in relation to two episodes. In the first, a number of workers engaged in an industrial dispute entered the premises of the employer and forcibly photographed a number of persons working at the site. This involved holding some of these persons against a wall and lifting up the faces of others (on occasions by pulling their hair back) so that their faces could be photographed. Yet others were pushed to the ground. The Court was in no doubt that this constituted an affray. In a second incident premises were invaded and, in the presence of frightened employees, filing cabinets were upturned, computers were thrown to the floor and damaged, files and papers were strewn around and pictures were taken off the walls and smashed. (There was also other property damage). In the course of its judgment the Court stated:

... it was not suggested that the kind of violent incursion which took place at [the] premises, involving deliberate but haphazard and violent damage to property, could not constitute an affray.[6]

23 The Court held that in each instance the necessary element that persons were likely to be terrified was present. The Court stated:

What is required is that the degree of violence "must be such as to be calculated to terrify a person of reasonably firm character".[7]

**24 It follows from the above that the affray, in the present case, could arguably have been constituted by the violent behaviour at the block of flats on the Princes Highway or by the fighting in the front garden of the flats in McFarlane Crescent. That this dichotomy may exist receives support in light of the finding that Abdul Tabbit took no part in the assault on Mr Harrison and yet he pleaded guilty to affray and was sentenced to imprisonment for 1 year with a non-parole period of 3 months, whilst in the case of George Pantazopoulos it was not suggested by the sentencing judge that the offence of affray was constituted by any activity other than the fighting in the garden area of the McFarlane Crescent flat.

25 I should interpolate that the material relating to the initial search for the 'Harrison group' and the role of these appellants in it is, in my opinion, too inchoate to constitute an affray.

26 In the case of the appellant King, it would appear that the basis of the affray was the assault of Mr Harrison since the sentencing judge expressly found that he was not involved in the incident at the block of flats which involved the aggressive yelling and the property damage. Insofar as the appellant Ngyoune is concerned, the situation is unclear since he was a participant at both venues.[8]

27 Bearing in mind that the charge on the presentment, in relation to each of the appellants, specified that they 'unlawfully fought and made an affray', I am driven to the conclusion that the offence of affray should in each case be treated as including the same factual matters as those that constituted intentionally causing serious injury, but not including the incident at 50 Princes Highway.

28 Of course, an additional and distinguishing element of the count of affray is that the unlawful fighting was such that a bystander of reasonable firmness and courage (whether or not present or likely to be present) might reasonably be expected to be terrified.

29 Notionally, therefore, cumulation was permissible in both cases without breaching any principles prohibiting double punishment.[9] However, in the circumstances of this case any additional element of criminality may be regarded as minor.**

30 I now turn to the substantial grounds of appeal. In relation to the appellant King, these were as follows:

(1) The learned judge erred in ordering any cumulation between the sentences, or as to the extent of cumulation ordered.

(2) The sentence on the count of affray, the extent of the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

(3) The sentences imposed upon the appellant infringed the principles of parity when regard is had to the sentence imposed upon the co-offenders and give rise to a justifiable sentence of grievance in the appellant.

31 In the case of the appellant King, counsel for the respondent effectively conceded that the sentence of 2 years' imprisonment imposed on the count of affray was excessive in the circumstances of this case. Indeed, it is convenient to quote the relevant submissions.

1. It is difficult to discern the reason for the appellant being given such a stern sentence for this count, particularly as characterised by the extent of the order for cumulation. The sentence of 2 years' imprisonment represented 40% of the maximum available penalty of 5 years. It was double the sentence that the co-offender Tabbit received after running a trial.[10]
2. While the learned sentencing judge was entitled to distinguish between the appellant and the younger co-offenders, indeed those young offenders who were eligible to receive YTC detention, the 2 year sentence imposed on the appellant represented double the YTC detention received by Ngyoune and SPA, and eight times the YTC detention received by Pantazopoulos.[11]

That disparity is heightened in light of the fact that the appellant's cumulation order of 12 months (50%) contrasted with those of the others. The 3 months YTC detention received by Pantazopoulos was made wholly concurrent, while the 1 year YTC detention received by Ngyoune and SPA were [sic] only cumulative as to 3 months (25%).

**32 I interpolate that the actual offending of Pantazopoulos was not relevantly distinguishable from that of this appellant, save that the appellant struck the first blow to Mr Harrison. On the count of intentionally causing serious injury Pantazopoulos was sentenced to be detained for 3 years in a youth justice centre.

1. The distinction in age and custodial alternatives between the appellant and Pantazopoulos, Ngyoune and SPA, the latter two in particular, was significant. While His Honour was entitled to impose different and lesser sentences on those three co-offenders, the extent of the difference is considerable, as is the comparison with the similarly aged co-offender Tabbit.
2. Apart from the age differential, it does not appear that the personal circumstances of this appellant, or his role in the offence, set him apart from the others, thereby warranting the extent of that distinction.
3. In the abovenamed circumstances, the respondent is prepared to concede, at the very least, the extent of the order for cumulation was inappropriate and arguably involved sentencing error. Furthermore, the appellant would appear to have an arguable case for unjustified disparity in relation to the sentence he received for the affray count.

**34 Given the concessions made on behalf of the respondent, which I regard as entirely proper, it is unnecessary to address in detail the arguments advanced on behalf of the appellant King. The sentencing discretion being re-opened, the appellant falls to be re-sentenced.

35 In arguing for a lesser total effective sentence and non-parole period, it was submitted on behalf of the appellant that adult prison constituted a more onerous form of punishment than detention in a youth justice centre. I agree with this contention.

36 Specifically, the Court's attention was drawn to the limited nature of the appellant's involvement in the assault on the victim; his ultimate urging of his associates to desist from that assault; his co-operation (albeit not total) with investigating police; his remorse; his relatively early plea of guilty; and his lack of prior convictions.

37 Reliance was also placed upon the appellant's youth, his excellent work record, his strong history of community involvement through sporting clubs, and the great support he enjoyed, not only from his family, but also from others. (In this regard there was a plethora of favourable references). Furthermore, counsel for the appellant pointed to the finding of the sentencing judge that the appellant's prospects of rehabilitation were excellent.

38 Counsel for the respondent, in arguing that any reduction in the appellant's head sentence should not be significant, and that there should be no interference with the non-parole period, emphasised the need for general deterrence against vigilante activity of this type; and the role of the appellant in elevating a verbal altercation to a physical attack upon an intoxicated victim. It was put that this was a serious example of an inherently serious offence with significant consequences for the victim and the victim's family. All of these submissions have considerable cogency and, like virtually all sentencing exercises, the striking of an appropriate balance is not easy.

39 For my part, I think this is a case where, having regard to the appellant's overall role in these offences (which, for sentencing purposes, must be divorced from the subsequent events), his past exemplary record, his youth and prospects of rehabilitation, a lesser sentence should be imposed. Moreover, such disposition should reflect the more onerous nature of incarceration in an adult prison.

40 On count 3 (intentionally cause serious injury) I would propose that the appellant be sentenced to imprisonment for 2 years and 9 months.

41 I am acutely conscious that the number of co-offenders and the variety of sentences they received make it difficult, if not impossible, to achieve an overall reconciliation of the terms imposed. This is particularly so for the offence of affray. Nonetheless, I am firmly of the view that the count of affray, overlapping as it did the offence of intentionally cause serious injury, should not have attracted a sentence of more than 3 months' imprisonment. Accordingly, that is the term which I would impose on count 2. Moreover, in my view, such period should be concurrent with count 3. This would result in a total effective sentence of 2 years and 9 months.

42 In relation to the non-parole period, I regard as entirely correct the sentencing judge's view that the considerable mitigating factors and the appellant's excellent prospects of rehabilitation enabled the fixing of a longer than normal parole period. In light of the reduction in the total effective sentence and having regard generally to the principles of parity, I would fix a non-parole period of 12 months.**

The January 2007 offences involving Jamie Ngyoune

**43 Before addressing the specific arguments advanced in the case of the appellant Ngyoune, it is necessary to briefly canvas the events giving rise to the second set of offences.

44 On 13 January 2007 a large crowd of people had gathered in the vicinity of the intersection of Elonera Road and the Princes Highway in Noble Park for the purpose of watching motor cars do burnouts and take part in illegal street drag races. On that night Jamie Ngyoune was driving past the scene with his father when curiosity led them to park their car and join the spectators. They arrived at about 1.30 to 2.00 a.m. and subsequently became separated. As the evening progressed, various young men engaged in a number of riotous and anti-police activities which Jamie Ngyoune viewed but in which he was not an active participant. These activities culminated in the battering down of the glass doors of a Blockbuster Video Store situated at the intersection. A number of persons rushed into the store stealing items and causing extensive damage. Jamie Ngyoune, who had been part of the throng outside the store, ran inside it at a time shortly after the doors had been smashed. He grabbed some sweets popularly known as Chupa Chups and a half empty box of chocolates. As he ran from the store he tripped over and dropped both items. He then met up with his father and they left the scene. The sentencing judge found that the appellant's actions occurred on the spur of the moment and were very stupid. At the time of this incident, Jamie Ngyoune was still on bail arising out of the events at Dandenong on 13 May 2005.

45 A security video tape of events inside the store was later played on television news programs and it displayed some footage of Jamie Ngyoune. It confirmed, as the sentencing judge had found, that he was not one of the persons who caused the property damage. Having viewed the television coverage, Jamie Ngyoune went to the police and admitted his involvement. The sentencing judge found that had he not done so, it was problematic whether he would have been identified, located and prosecuted.

46 Moreover, in addition to providing a statement to the police, Jamie Ngyoune undertook to give evidence for the prosecution if called upon to do so. In the course of the plea proceedings, the Crown Prosecutor stated that the appellant's role in the matter was minor.**

47 In relation to Jamie Ngyoune, the grounds of appeal were as follows:

(1) The learned sentencing Judge erred in passing a sentence upon the appellant which was manifestly disparate with the sentence passed upon the co-offender SPA.

(2) The individual sentence on the burglary count and the total sentence passed upon the appellant in relation to the Noble Park offending are in the circumstances manifestly excessive.

(I interpolate that, on the hearing of this appeal, counsel for the appellant sought, and was granted, leave to amend ground 2 by adding the words 'and manifestly disparate to sentences imposed on the co-offenders').

(3) That the learned sentencing Judge imposed a sentence that in all the circumstances was manifestly excessive.

**48 In relation to the sentences imposed for intentionally cause serious injury and affray which, it will be recalled, were 2 years and 1 year respectively in a youth justice centre with 3 months on the count of affray to be cumulative upon that of intentionally cause serious injury, it was argued, on behalf of the appellant, that the sentence of 2 years for the first offence offended the principles of parity when compared with that imposed on the co-offender SPA which was 1 year and 6 months.

49 It was pointed out that the sentencing judge found that both the appellant Ngyoune and SPA had a number of matters in common. They were young, had no prior convictions, came from supportive families, and had demonstrated remorse. He assessed their rehabilitation prospects as 'at least very good'.

50 In particular, a distinction was sought to be drawn between the plea of guilty of the appellant and the fact that SPA (who had also been charged with murder) contested these matters at trial.

51 This is not, in my view, a true distinction. As the sentencing judge remarked, the co-offender SPA was prepared at an early stage to plead guilty to the two offences of which he was ultimately found guilty. This was clearly a relevant sentencing factor. The judge also took into account his preparedness to give evidence against his co-offender Gottinger, who was ultimately found guilty of murder. Moreover, the sentencing judge took into account that SPA had had to endure the ordeal of two long trials as a consequence of the first jury being unable to agree.

52 There were, moreover, other distinguishing factors. Unlike this appellant, SPA had experienced the provocation of the initial assault during which his jacket and T-shirt were pulled off, and he had committed no subsequent offences while on bail.

53 In all the circumstances, I am quite unpersuaded that the difference of 6 months in the sentence imposed on the count of intentionally inflicting serious injury breached the parity principle.

54 Ground 2 complains that the sentence imposed on the burglary count and the total sentence passed upon the appellant in relation to the Noble Park offending are, in themselves, manifestly excessive and, moreover, manifestly disparate to the sentence imposed on the co-offenders.

55 Ground 3 was, in effect, that the total effective sentence passed was consequently also manifestly excessive. It is convenient to deal with both grounds together.

56 In relation to the sentence for affray, I can see no reason to distinguish between this appellant and the appellant King. Consequently, I would reduce the affray sentence to 3 months and make it concurrent with the sentence for intentionally inflicting serious injury.

57 In relation to the second set of offences, it was conceded on behalf of the respondent that the sentence for the offence of burglary was a stern one, but it was argued that it was within the range.

58 Given that the Crown itself, in the course of the plea, proffered the view that the appellant's role was minor, I regard the sentence of 12 months as manifestly excessive. Moreover, it is manifestly disparate to the sentence imposed on six co-offenders by Judge Gaynor in the County Court on 19 October 2007.[12] Three of those offenders, who entered the store and stole items, were not charged with burglary at all. The charges of burglary seem to have been limited to two offenders who entered the Blockbuster Video Store on a second occasion. Each of the six offenders was also charged with riot and four of them were also charged with theft.

59 It is not necessary to descend into detail. It is sufficient to say that the mitigating factors in these cases were similar to those pertaining to this appellant. In the event, five of the co-offenders without prior convictions received (inter alia) community based orders and, on the count of burglary, one offender received a fine of $1,000 whilst the other, who had prior convictions for theft and assault, received a sentence of 4 months' imprisonment which, ultimately, was wholly suspended. For completeness I should add that in the case of the five offenders without a prior criminal history, no convictions were recorded.

60 It is clear that the treatment of these offenders was starkly different from the sentencing regime experienced by this appellant.**

**61 That fact alone would not, of course, be conclusive of any specific sentencing error or the imposition of a manifestly excessive sentence. There will always be circumstances where the sentence invoked for comparison purposes in a parity argument will, itself, be seen to be manifestly inadequate.

62 However, in my view, and even accepting the circumstances in which the offence of burglary occurred, the sentence imposed was manifestly excessive. This is particularly so having regard to the appellant's youth; lack of prior convictions; evidence of good character both written and viva voce; evidence about the appellant's leadership abilities; his sporting and academic prowess and his stable family background. As I have already mentioned, the sentencing judge assessed that he had at least very good prospects of rehabilitation. In my view, a monetary penalty would have been a sentence which more than adequately reflected all of the factors relating to the offence and the offender. On the count of burglary I would impose a fine of $500 (with conviction). Given that disposition the provisions of s 16(3C) of the Sentencing Act 1991 are not enlivened.

63 No submissions were advanced on behalf of the appellant as to the appropriateness of the sentences for riot and theft and, consequently, I do not propose to reconsider them.

64 Accordingly, when combined with the penalties imposed for the May 2005 matters, this would result in a total effective sentence of 2 years' detention in a youth justice centre, together with a $500 fine.**

[1] [1985] QB 242.

[2] [1973] AC 964.

[4] [2004] VSCA 150; (2004) 10 VR 85.

[5] [1966] AC 591.

[6] [2004] VSCA 150; (2004) 10 VR 85, 97.

[8] [2007] VSC 144 [12].

[9] See Pearce v R (1998) 194 CLR 610.

[10] Tabbit was approximately one month younger than the appellant.

[11] Pantazopoulos was only seven months younger than the appellant.