R v Ly; R v Tat [2004] VSCA 45

12. On 6 December 2002, at the Melbourne County Court, the appellants Ming Gai Ly (Ly), Nguyen Tat (Tat) and Khuong Duy Dao (Dao) each pleaded guilty to one count of affray (Count 1). Additionally, Ly and Tat pleaded guilty to two counts of intentionally causing serious injury (Counts 2 and 3) and Dao pleaded guilty to one count of intentionally causing serious injury (Count 4). At the time of the commission of these offences, the appellant Ly was aged 27 whilst Tat and Dao were each aged 24 years. At the time of sentencing their ages were 28, 26 and 25 years respectively.

15. The sentencing itself occurred on 12 December 2002 when the appellants were sentenced as follows. Ly was sentenced to 3 years' imprisonment on the count of affray and on the two counts of intentionally causing serious injury, imprisonment for 3 years and 6 years respectively. The sentencing judge directed that 2 years of the sentence imposed on Count 2 and 3 years of the sentence imposed on Count 3 should be served cumulatively on Count 1, producing a total effective sentence of 8 years' imprisonment. The sentencing judge fixed a minimum period of 6 years before the appellant was eligible for release on parole. Pre-sentence detention of 11 days was declared pursuant to s.18 of the Sentencing Act 1991 (the Act). The appellant Tat was also sentenced to 3 years' imprisonment for affray and to 4 years' and 7 years' imprisonment respectively on Counts 2 and 3 being the counts of intentionally causing serious injury. The sentencing judge directed that 2 years of the sentence

imposed on Count 2 and 4 years of the sentence imposed on Count 3 should be served cumulatively on Count 1, producing a total effective sentence of 9 years' imprisonment. The sentencing judge fixed a minimum of 7 years before the appellant was eligible for release on parole and pre-sentence detention of 9 days was declared.

19. The appellant Dao was sentenced to 3 years' imprisonment on the count of affray and 2 years' imprisonment on one count of intentionally causing serious injury (Count 4). The sentencing judge directed that the sentence imposed on Count 4 be served cumulatively upon Count 1 producing a total effective sentence of 5 years' imprisonment. A minimum period of 3 years 6 months was fixed before the appellant was eligible for release on parole and pre-sentence detention of 6 days was declared.

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

25. The appellant Ly had four previous convictions from three court appearances. One of relevance was for recklessly causing serious injury in 1998 for which he received a $1,000 fine. The appellant Tat had four previous convictions from three court appearances whilst the appellant Dao had no previous convictions.

28. It is pertinent to note that the matter was the subject of a plea settlement. It was agreed that the respondent would lead evidence on the count of affray to the effect that all appellants were involved in the attacks on the victims and that Ly would plead guilty to Count 3 on the basis that he acted in concert with Tat, whilst Tat would plea guilty to Count 2 on the basis that he acted in concert with Ly. It was further agreed that the appellants were part of a large group of perhaps 20 who entered the premises carrying weapons including three machetes and at least one iron bar. Ly was armed with a beer jug and a bottle and Tat and Dao each had a machete. There was no evidence of any precise motive for the incident but it was agreed that the persons assaulted were not part of any underworld or criminal group but were innocent victims. It was on that basis that the respondents' case was outlined to the sentencing judge. It may be summarised as follows.

31. On the night of 12 September 2001, Steven Banh, Kar Wah (Ricky) To and Kea Sang (Patrick) Lim met with other persons at the Top 1 Karaoke Bar in Heffernan Lane, Melbourne, eventually settling in an upstairs private room. During the course of the evening this group was joined by several other people including Sai Ho Lee and Truc Vinh Tran. About half an hour later a second group of about 20 people, which included the appellants and a man named Chee Hong Leong (Leong) arrived at the premises. Around 2.00 a.m. on 13 September, Patrick Lim and another man walked downstairs to go home. Banh also descended the stairs to farewell Lim and visit the mens' toilet. As Lim and Banh were approaching the entrance door near the mens' toilet, they were set upon by five males. Banh was struck in the head with bottles and metal rods. Lim was struck from behind with an object and fell to the floor. While on the ground he was stabbed and kicked several times. Lee then came down the stairs and was initially hit on the head two or three times by the appellant Dao. On covering his head, he was struck on the upper back with a knife wielded by Dao. (This incident was the subject matter of Count 4.) Sometime during the attack Banh ran upstairs and informed his group that both he and Lim had been assaulted. As a result a number of males including To and Truc Vinh Tran (Tran) ran downstairs. To observed Lim lying face down in front of the bar area with five or six males standing over him. These males were holding bottles and at least one male was holding an iron bar. To then observed the appellant Ly strike Banh across the right side of the head with a beer jug (Count 2). To intervened and as he did so was struck with a bottle across the left eye. He covered his head and was then struck with a knife across the right hand and wrist area. According to the Crown case To was also struck with a knife on the right arm. He was "chopped" by both Tat and Dao. This seems to have been encompassed in the affray. To was then struck across the back of the neck with an instrument believed to be a machete.

34. Next, Banh was struck to the head and arm with an iron bar wielded by another member of the appellants' group Leong. He attempted to run out the entrance door of the premises with Leong in pursuit. Leong struck Banh with the iron bar with sufficient force to smash the wrist watch he was wearing. Leong then threw the iron bar at Banh. During the course of the fracas Leong also struck Lee with the bar.

37. As with any violent melee of this nature, different witnesses from different vantage points observed different events. Thus the witness Tran, who had run downstairs, observed three or four persons attacking To and Banh. He attempted to pull To towards the staircase away from the attackers and, as he did so, observed the appellant Tat strike To several times with a machete including a blow to the back of the neck. The appellant Ly was with Tat at the time and was also assaulting To (Count 3). Tran eventually took To upstairs away from the assailants. Subsequently, the appellants' group left the premises and a search of the crime scene by investigating police located a black coloured cylindrical container in which there were two cloth handled machetes near the main lounge area. Under a seat of a chair in the main lounge area a black handled knife wrapped in cloth was located. The police also located a machete with white cloth wrapped around the handle sticking out of a green wheelie bin in Heffernan Lane opposite the entry to Top 1. A steel pole, approximately 60 centimetres in length with apparent bloodstains on it, was located next to the bin.

40. When subsequently interviewed, the appellant Ly, while admitting that he had attended Top 1 Karaoke Bar on the occasion of the fight, denied being involved in it. The appellant Tat made a no comment record of interview whilst the appellant Dao admitted his presence but endeavoured to cast himself in the role of victim. As a result of this incident Banh suffered injuries including lacerations to his face and back requiring suturing; To's injuries included lacerations to the back of the neck (which were life threatening) and to the arms; whilst the injuries sustained by Lee included a wound to the shoulder and bruising. Each of the victims has been psychologically traumatised by this incident and have experienced sleeping difficulties, flashbacks and nightmares. Steven Banh and Ricky To bear the scars of the attack and the latter asserts that his ambition to pursue a career as a chef has been destroyed because of the serious tendon damage to his right arm.

43. The victim Patrick Lim sustained very serious multiple lacerations (which were life threatening), and have resulted in a clawed right hand with weakness and numbness which, according to a medical report, is likely to constitute a permanent deformity and disability. Whilst it was not asserted by the respondent that any of the appellants was involved in the infliction of the injuries to Lim, they occurred in the course of the affray and it is, perhaps, trite to observe that the infliction of serious violent injuries might reasonably be expected to increase the level of terror experienced by a bystander of reasonable firmness and courage which is the essence of the offence of affray.

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

(1) That the learned sentencing judge erred in the exercise of his discretion in finding that the machetes are predominantly the weapon of choice for Vietnamese youths.

(2) That the learned sentencing judge erred in the exercise of his sentencing discretion by giving any or excessive weight to the question of prevalence.

(3) That the learned sentencing judge erred in the exercise of his discretion in failing to have regard or sufficient regard to principles of totality and proportionality.

(4) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard of the applicant's early plea of guilty.

(5) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard to the applicant's age and prospects of rehabilitation.

(6) That the sentences imposed in all the circumstances are manifestly excessive.

52. The Notice of Application for Leave to Appeal against Sentence of Tat contained the following grounds:

(1) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard to the principles of totality and proportionality.

(2) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard of the applicant's early plea of guilty.

(3) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard to the applicant's age, his prospects of rehabilitation and lack of relevant prior convictions.

(4) That the learned sentencing judge erred in the exercise of his discretion in finding that the machetes are predominantly the weapons of choice for Vietnamese youths.

(5) That the learned sentencing judge erred in the exercise of his sentencing discretion by giving any or excessive weight to questions of prevalence.

(6) That the sentences imposed in all the circumstances are manifestly excessive.

58. Insofar as the appellant Dao is concerned, the grounds were as follows:

(1) That the learned sentencing judge erred in the exercise of his discretion in finding that the machetes are predominantly the weapon of choice for Vietnamese youths.

(2) That the learned sentencing judge erred in the exercise of his sentencing discretion by giving any or excessive weight to questions of prevalence.

(3) That the learned sentencing judge erred in the exercise of his sentencing discretion in ordering total cumulation of the sentence imposed on Count 3 upon the sentence on Count 1.

(4) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard to principles of totality and proportionality.

(5) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard to the applicant's age and prospects of rehabilitation.

(6) That the learned sentencing judge erred in the exercise of his sentencing discretion in failing to have regard or sufficient regard of the applicant's early plea of guilty.

(7) That the sentences imposed in all the circumstances are manifestly excessive.

64. On 5 September 2003, the applicants were granted leave to appeal pursuant to s.582 of the Crimes Act 1958 by Winneke, P. on the basis of a possible misapplication of totality principles and failure to address questions of double punishment. Against that background I turn to the arguments of counsel.

67. On 2 December the appellant Tat was given leave to add the following grounds:

"(7) The learned sentencing judge erred by failing to order greater concurrency between the sentences imposed on Counts 1, 2 and 3. (8) The learned sentencing judge erred by; (a) sentencing the applicant (sic) without having regard to the principles relating to double punishment (see Pearce v The Queen (1998) 194 C.L.R. 610); (b) failing to pass sentences which avoid a double punishment arising out of the commonality of the offending disclosed on the three counts alleged against the applicant (sic); (9) The learned sentencing judge erred by imposing an insufficient disparity between the total effective head sentence and the non-parole period."

71. Counsel appearing on behalf of Ly abandoned ground 1 and argued grounds 2 to 5 essentially as particulars of ground 6 (manifest excess). It was strenuously argued that the sentencing judge had not accorded sufficient weight to the appellant's pleas of guilty, particularly as they were made as early as the committal stage of these proceedings. His Honour's remarks on the topic were sparse:

"I take into account you did plead guilty at the committal stage, but in all the circumstances do not, either in your case or that of your co-offenders, take that plea as being indicative of any particular remorse. It does, however, in the words of the High Court, indicate a willingness to facilitate the course of justice."

No doubt the judge was referring to the passage in Cameron v. R.[1] where, in the joint judgment of Gaudron, Gummow and Callinan, JJ. confirm earlier judicial statements in relation to:

"... the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a 'fast-track' plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity."

77. The approach to be taken by sentencing judges to guilty pleas was also set out in R. v. Duncan[2]. In a frequently quoted passage Callaway, JA. remarked:

"... 7. In the case of a plea of guilty it is necessary to distinguish between the plea as indicating contrition or some other quality or attribute that is relevant to sentencing and the plea in its own right, but again the public interest is important. 8. The plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount. 9. An early plea that does nothing except save time and expense is still entitled to consideration, and should usually attract a significant discount .... [cases cited] 10. In a time of rising sentences, in conformity with community concerns to which Parliament has given expression in legislation, the discount for pleading guilty should be more rather than less ..."[3]

81. In the instant case, even conceding that there was no independent evidence of remorse, the appellant's pleas indicated an acceptance of responsibility and a willingness to facilitate the course of justice. The pleas were entered at an early stage and saved the expense of a potentially lengthy trial and one in which many witnesses would have been subjected to the trauma of having to give evidence.

84. The extent or significance of a sentencing discount is not always easy to discern. It is not usually quantified by sentencing judges and cannot be approached simply by asserting a quantum figure (for example one third or one quarter) and extrapolating that to the notional sentence which would have been imposed in the absence of the guilty plea. Indeed, such a mechanistic method runs counter to the intuitive synthesis espoused by appellate courts. However, it is an important policy consideration in the administration of justice that defendants not only receive appropriate credit for pleas of guilty but that they appear to receive credit for such pleas. Pragmatically barristers have to be able to assure those they represent that the benefit pronounced by a sentencing judge is not illusory but is reflected in the actual sentence imposed.

87. In the present case it is argued that the sentences imposed on Ly (and indeed the other appellants) do not reflect any benefit for the guilty pleas.

90. The sentence imposed on the count of affray was 3 years of a maximum available penalty of 5 years. On its face there appears to be very little allowance made for any sentencing discount. On the other hand, this was a serious example of an affray. It involved the use of potentially lethal weapons in the relatively confined space of a nightclub to which a large number of patrons had resorted. The bloody nature of the unprovoked attack and the severity of injuries inflicted was calculated to create high levels of fear in the patrons. The need to denounce and to specifically and generally deter persons minded to arm themselves with knifes and perpetrate violence of this nature in nightclubs and other places of public entertainment is very great. Members of the public are entitled to attend such venues as Top 1 Karaoke Bar to eat and drink without being terrorised. The appellant was an active participant in this offence although he did not initiate it. On the facts disclosed it was open to the sentencing judge to treat all the appellants as equally culpable. Indeed each played a significant role in the affray. Even taking into account the guilty plea of this appellant and the others factors submitted as favourable to him, namely, his relatively young age of 28, his reasonable employment history (including his gainful employment after being bailed for these offences) and his supportive family, I am not persuaded that the sentence for affray is outside the range of sentences open to his Honour albeit that it is at the top of that range.

93. However, the sentences on Counts 2 and 3 are in a different category. Count 2 involved striking Steven Banh across the right side of the head with a beer jug. No specific injury was linked to that assault and it is clear that the man Leong was responsible for a number of Banh's injuries. Nonetheless, the appellant's plea contained the admission of causing serious injury and doing so intentionally. The appellant also had a prior conviction for recklessly causing serious injury some three years earlier, the circumstances of which were unexplained to the sentencing judge. Although the previous offence attracted a substantial fine rather than any period of imprisonment, it was certainly relevant to specific deterrence. Moreover, the same sentencing considerations of denunciation and specific and general deterrence as were pertinent to the charge of affray, obtained in relation to this offence, and indeed to Count 3. However, even bearing in mind the factors to which I have adverted, I have concluded in relation to this offence that the sentencing judge did not accord the appellant's plea of guilty the significant weight it warranted and to that extent his sentencing discretion miscarried.

96. In relation to Count 3, it was submitted that Ly, whilst acting in concert with Tat when he assaulted the victim of this count, To, with the machete, did not personally assault him. I note, however, that the respondent's case, as outlined, was that the witness Peter Ng had later observed both Ly and Tat kicking To while he was on the ground. It is not clear to me whether these actions are also encompassed by Count 3 or are proffered by the respondent as part of the general affray. In fairness I will proceed on the latter basis.

99. I will not repeat the relevant sentencing considerations. Again I have concluded that, in the circumstances, the sentence of 6 years imposed does not give sufficient weight to the appellant's plea of guilty.

102. The major complaint of all the appellants was that the method and quantum of cumulation adopted by the sentencing judge offended the principles of totality and proportionality. It was asserted that the cumulation of the substantive and more serious offences of intentionally causing serious injury upon the sentence of affray, must betoken sentencing error. Whilst this will not necessarily be so, logic would suggest that in constructing a total effective sentence, cumulation should normally occur upon the most serious of the individual offences. Indeed, the desirability of an approach which gives primacy to the most serious offence is a subject of comment in R. v. MDB[4]. In the present case each of Counts 2 to 4 not only involved the perpetration of actual violence by the appellants but carried a maximum penalty four times that of the offence of affray.

105. However, the major element of the complaint of all the appellants was that they had been subjected to double punishment. This matter was considered by the High Court in Pearce v. R.[5] In the joint judgment of McHugh, Hayne and Callinan, JJ., their Honours observed (p.623):

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

109. Although the specific legal elements differ between affray and intentionally causing serious injury there is the common factor of unlawful fighting or unlawful violence in the context of a case such as the present one. The substantive acts of unlawful violence which attract the penalty for intentionally causing serious injury constitute a large measure of the acts of unlawful violence creating the terror which is the essence of the offence of affray. Whilst the distinguishing features of the two offences provide a warrant for some cumulation it must be necessarily be limited and care must be taken to avoid double punishment. In the present case I am persuaded that the manner of cumulation of the sentences imposed on Ly, (for which the judge gave no specific reasons) offends the proscription of double punishment and, of itself, results in a sentence which is manifestly excessive.

112. In the case of the appellant Tat the submissions in relation to the undervaluing of the guilty pleas, and the faulty approach to and structuring of the periods of cumulation, were essentially the same as those advanced on behalf of the appellant Ly. I need not repeat them. Additionally, it was argued that the sentencing judge had sentenced the appellant on Count 2 on an erroneous view of the facts. It appears from his Honour's reasons for sentence that he regarded Tat as responsible for inflicting injuries on Banh with a machete. However, the plea to Count 2 by Tat was on the basis of acting in concert with Ly who, on the evidence, had struck Banh with a beer jug. It was only on the basis of that mistaken view of the facts that the sentence of 4 years imposed on Tat, compared with 3 years imposed on Ly as the principal aggressor in encounter, could be explained. Indeed, counsel for the respondent conceded that a factual error had been made by the sentencing judge.

115. Apart from that error, and as part of the argument of manifest excess, it was submitted that although the sentencing judge had mentioned such matters as the age of the appellant (26), his lack of prior convictions for violence, his good work record, his early pleas of guilty and the onerous bail conditions which required him to report daily, there had been a failure to give adequate weight to them in either the individual sentences imposed or the total effective sentence. Further, it was argued that the length of the non-parole period did not reflect the appellant's good prospects of rehabilitation.

118. I will not rehearse again the sentencing principles which the sentencing judge was obliged to take into account in dealing with what were, on any view, serious offences. As with the appellant Ly, I have concluded that the individual sentences for Counts 2 and 3 did not adequately reflect (inter alia) the guilty pleas of the appellant and that the manner of cumulation was flawed.

121. In the case of the appellant Dao counsel also adopted the arguments to which I have already referred. The substantive offence to which this appellant had pleaded guilty, namely an assault on the victim Lee, had resulted in injuries which barely met the criteria of "serious". This was recognised by the sentencing judge in the course of the plea. It was submitted that given what was described by counsel as "the weakness of the substantive count" the weight to be given to this appellant's plea of guilty should have been proportionately greater and resulted in a lesser sentence. In further support of this contention, counsel referred to the appellant's relatively young age (24 at the time of the offences), his solid work history and his lack of prior convictions, all of which augured well for his prospects of rehabilitation. In addition the appellant had suffered punishment in the loss of his then job and de facto wife as a consequence of this incident.

124. In relation to this appellant, specific complaint was made that he was singled out for the total cumulation of both sentences imposed upon him. Counsel for the respondent conceded that no reason could be discerned for this discrepancy in disposition. Finally, the appellant's counsel pointed to the high non-parole period of 3½ years for a relatively young first offender with good prospects of rehabilitation.

127. All of these submissions have merit. In my view not only is the sentence for the offence of intentionally causing serious injury too high (given the appellant's record and early plea) but the order for cumulation is inappropriate as is the comparatively high non-parole period.

130. The sentencing discretion having miscarried in the case of all the appellants, it falls to re-sentence them.

133. I would propose that the appellant Ly be sentenced on Count 2 to 2 years' imprisonment and on Count 3 to imprisonment for 4 years. I would not interfere with the sentence on Count 1 in any of the cases, but I would order that 1 year of that Count and 6 months of Count 2 be served cumulatively with Count 3 and with each other. This would make a total effective sentence of 5½ years. I would fix a non-parole period of 3½ years.

136. Insofar as the appellant Tat is concerned I would sentence him to be imprisoned for 2 years on Count 2 and 5 years on Count 3. I would cumulate 1 year of Count 1 and 6 months of Count 2 upon Count 3 and each other, resulting in a total effective sentence of 6½ years. I would fix a non-parole period of 4½ years.

139. In the case of Dao I would impose a sentence of 21 months on Count 4 to be served concurrently with Count 1. This would produce a total effective sentence of 3 years. I would fix a non-parole period of 21 months.

[3] See also R. v. Tasker and Tasker [2003] VSCA 190.

[4] [2003] VSCA 181 at para. 14. See also R. v. GAM [2003] VSCA 185 at para. 33.