R v Nguyen [2000] VSCA 209

5. The applicant admitted one court appearance in a Magistrates' Court at Broadmeadows in August 1997 when he was found guilty of charges of hindering the police, being drunk in a public place and failing to answer bail. He was sentenced, without conviction, to undergo a bond to be of good behaviour for 12 months with a condition that he pay $150 to the court fund.

8. After hearing a plea for leniency, the learned judge, on 9 May last, sentenced the applicant to be imprisoned for six months on the first count and five years on the second, making for a total effective sentence of five years' imprisonment. A non-parole period of two-and-a-half years was fixed.

11. The applicant later lodged notice of application for leave to appeal against sentence pleading certain grounds and on 16 October last the learned Registrar granted leave to substitute the following grounds:

"Ground 1. That the learned sentencing judge erred in law in failing to give sufficient weight to the applicant's plea of guilty and co-operation with authorities. Ground 2. That the learned sentencing judge erred in law in failing to give sufficient weight to the delay in hearing the case. Ground 3. That the sentences imposed were manifestly excessive in all of the circumstances of the case and of the applicant. Ground 4. That by reason of circumstances that have arisen since the date of sentence, the sentence of imprisonment has become more onerous than what may have been contemplated at the time of sentence, thereby giving rise to manifestly excessive sentences in all the circumstances."

15. The facts of the applicant's offences may be shortly stated. On a Saturday night, 28 February 1998, the applicant attended a Vietnamese wedding. He and other men consumed a quantity of alcohol. Early the following morning these people travelled in two vehicles to the home of the victim, Mr Phan, in Canning Street, North Melbourne. This visit was prompted by animosities generated by earlier incidents which need not be detailed.

18. At Canning Street, Mr Phan's motor car was parked at ground level in a block of flats. The applicant and others damaged it, slashing the tyres and inflicting other damage to a total cost of $2,194. The applicant later admitted to the police that he had smashed the windscreen and stabbed all four tyres with a knife. (He may have erred as to this because apparently only three tyres were damaged.) Two of the group (not the applicant) then went upstairs in the flats to the victim's home where he was present with his wife. They beat on the door. Ultimately he came out armed with a towel rail for self protection. He went down the stairs, where a fight ensued during which the applicant, as the learned judge later found, stabbed him at least three times after he had been overpowered by others. His wife appeared, whereupon the attackers decamped. Mr Phan was taken to hospital where he was found to have bruising and swelling and lacerations to the right forearm, left ear, left anterior chest, left abdomen and right thigh consistent with at least three knife wounds. He had a collapsed lung which required the insertion of a chest drain, a laparotomy was performed and a laceration of the liver discovered. The learned judge found that the injuries were serious and that it was fortunate that the victim lived. He was hospitalised on 1 March and transferred from intensive care a day later. He was not discharged from hospital until 12 March.

21. The applicant, so the judge found, was prepared to plead guilty to the offence contained in count 2 from the outset. He was committed for trial with two other men, having been charged at that point with attempted murder, in September 1998. During 1999 the matter came on for trial on three occasions, but was not reached in circumstances where no fault for delay rested upon the applicant.

24. On 5 May last, the applicant made a statement to the authorities and gave an undertaking to give evidence against the other persons charged to the learned sentencing judge on 9 May 2000. On 15 May he gave evidence in a "Basha" inquiry in relation to proceedings against the other accused.

27. In relation to ground 4, the applicant made an affidavit on 16 October last. In substance he has deposed that during his periods of remand and the service of his sentence he has been housed in protective custody, which circumstance reflects fears for his safety because of his co-operation with the prosecuting authorities. He asserts that he is in a constant state of fear of his fellow prisoners, that he sleeps alone nine hours per night and spends seven hours per day in a small unit with other protected prisoners. He is allowed access to fresh air, but not to exercise, for one hour each day. He has attempted to continue studies in mathematics and science at RMIT University, but this is attended by great difficulties. As a protected prisoner he has limited personal visits and asserts that he believes it will be difficult for him to obtain a lower security classification.

33. Mr Grace, for the applicant, began his submissions by first addressing ground 4, which, it will be recalled, relied on events that have occurred since sentence. Counsel spoke to the detail of the applicant's affidavit and then referred to the case of R. v. Knights[1], particularly passages on pp.110 and 111 in the judgment of Crockett, J., with whom the other members of the Court agreed. Counsel then mentioned R. v. Rostom[2], a decision of this Court, particularly passages at 101-103 in the judgment of Charles, J.A., with whom the other members of the Court agreed. If I may say so, the cases relate to different points. Knights stands for the principle that this Court will always receive evidence which is not "fresh" in the technical sense to avoid a miscarriage of justice, while Rostom relates to evidence of events subsequent to sentence which, while not prima facie admissible, throws light on the facts known at the time of sentence.

36. Mr Grace accepted the sentencing judge alluded to the fact that the applicant would "serve it (his incarceration) much harder" and that he would have been aware of the rigours of prison life for protected prisoners. But, counsel submitted, it would not have been evident to the judge that protective custody would, in particular, adversely affect the applicant's studies and consequently his rehabilitation.

39. Mr Grace then turned to ground 1, which he described as a related ground. He referred, in this connection, to the applicant's statement to the police, which he described as extensive, and reminded the Court that the applicant had given sworn evidence upon a "Basha" inquiry and had been cross-examined. Counsel referred to page 3 of the judge's reasons for sentence, which recorded his Honour as saying:

"Your plea of guilty is of significance of itself and also betokens your remorse. Further, as well as pleading guilty before me - with the consequences which the law correctly attributes to such a plea: see R. v. Donnelly [1998] 1 V.R.645 - you have formally given an undertaking pursuant to s.5(2AB) of the Sentencing Act 1991 to assist the law enforcement authorities in the prosecution of the balance of these offences. Consonant with well known considerations - see R. v. Duncan [1998] 3 V.R.208 - I take that matter into account as well including the added burden it will involve as to the quality of your time of imprisonment. I give your plea of guilty and your preparedness to give evidence significant weight in your favour."

43. Counsel begged to doubt whether his Honour had performed the announcement required by that section, but said nothing turned on that. In any event, he submitted that there was no specific indication in the reasons that the judge had imposed a lesser sentence than he otherwise would have because of the undertaking.

46. As to this ground, counsel said the "complaint", as he put it, was that when one considers what must have been the starting point of the sentencing process before mitigating factors were taken into account, the resulting sentence is obviously too severe.

49. Mr Grace then turned to ground 3, which he said related to both the head sentence and the non-parole period fixed. In support of this ground counsel emphasised the matters of the applicant's age (29 at sentence); his previous good character and absence of relevant prior convictions; his difficult background including his forced removal from Vietnam and his subsequent privations in Hong Kong; his educational success and his charitable work together with his good prospects of rehabilitation. In relation to this ground, a subsequent court appearance of the applicant was mentioned. On 29 September 1998 he was ordered to undertake over six months 100 hours of unpaid community work for an offence of unlawfully obtaining Austudy. Apparently he had failed to disclose to the authorities that he had ceased his studies. I treat this matter as no more than an impediment to counsel being able to contend that, subsequent to the commission of the relevant offences, the applicant had always obeyed the law.

52. Ground 2, counsel reminded the Court, raised the issue of delay. The learned judge had referred to this matter on page 1 of the reasons for sentence:

"You (the applicant) and one other were promptly arrested and on 2 March you were charged, having been interviewed, with attempted murder."

56. His Honour then referred to the committal proceedings and continued:

"Last year in this court on three occasions the matter came on for trial of you and the other two persons on the charge of attempted murder and other charges. By reason of difficulties with an overloaded list in this court, on each occasion the trial was not able to proceed through no fault of yours."

60. This was a case, Mr Grace urged, of what he called "real delay" and it was delay, he contended, to the serious detriment and prejudice of the applicant. Though he had been on bail, he had been subject to stringent conditions of daily reporting, a curfew, a strict residential condition and restrictions of association for almost two years. Despite all this, it was greatly to his credit that he had resumed his studies in the first semester this year. Counsel referred to the case of R. v. Schwabegger[3] and in particular observations of Kenny, J.A. at pp.655-657. This was a case of delay between the detection of the relevant offences and the interviewing of the applicant in 1990 and 1991 until his charging in 1997. This delay was variously described as "extraordinary", "lengthy" and "unexplained". Her Honour referred with approval to portion of the judgment of Tadgell, J.A. (with whom the other members of the Court agreed) in R. v. Miceli[4]:

"There is no doubt that proper sentencing principles will dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced."

"Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence ... to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life."

66. Counsel submitted that in the applicant's case there had been evidence of rehabilitation of a practical nature and that, as a consequence, there was a reduced need for the sentencing judge to apply specific deterrence. This rehabilitation was manifest in his change of associates and departure from their lifestyle; he was no longer a "tearaway" in his own community and he was prepared to give evidence for the Crown.

69. Mr Rapke, for the Crown, submitted that all the matters canvassed by Mr Grace had been put to the sentencing judge and, with one exception, had been specifically acknowledged by his Honour. That exception was rehabilitation in the applicant, but, counsel argued, it was evident from the reasons for sentence as a whole and the actual sentence imposed, that the judge had properly taken that matter into account.

72. As to ground 4, he submitted that the judge had specifically adverted to the quality of the applicant's prospective incarceration. He contended that the applicant's affidavit material was not "fresh" in that it was all before the judge in another form. His Honour had referred to the case of Rostom (p.41) and plainly understood the submission of the applicant's counsel that by reason of his assistance and offer to give evidence the applicant would serve a term of imprisonment "much harder" (p.41). Even if each detail of the applicant's affidavit had been pressed on the judge, it cannot be that the judge could have properly further reduced the length of the sentence by reason of that material.

75. Overall, counsel contended, the sentence imposed on the applicant was a merciful one because his second offence was a serious one attended by several aggravating circumstances. They included the use of a knife on the victim at a point of time when he was being restrained, having been beaten and subdued. Further, it was an offence committed at night near the victim's home and committed in company. Were it not for the undoubted mitigating factors, a much more severe sentence would have been reasonably expected.

78. Counsel also sought to canvass the timing of the applicant's plea. I do not think it was open for him to do this having regard to the judge's finding: "I accept that for all practical purposes you have always been prepared to plead guilty to that charge" (p.3 reasons for sentence). In the same vein, counsel sought to put forward contentions that the applicant's offences had been preceded by months of intimidation and harassment of the victim and that a wound on his face would constitute permanent disfigurement. It is sufficient to say that the learned judge made no such findings.

84. In my opinion the affidavit of the applicant should not be admitted into evidence. It does not, in my view, fall within the principles established by the cases of Knights and Rostom. I would accept the submission of Mr Rapke that the matters raised in it were before the judge in reality and it is not to be supposed that such an experienced judge would be anything other than very familiar with the additional privations of prisoners in protective custody. I would also accept Mr Rapke's submission that this material could not have reasonably operated so as to produce a more lenient sentence than that imposed. There was complaint during argument that the judge was uninformed of the effect the applicant's particular custody would have on his educational efforts. While it is not altogether clear, it seems to me that the passage cited in relation to this indicates that counsel elected to put the cessation of the applicant's studies as an additional consequence of imprisonment (pp.29-30).

90. As to ground 1, the learned judge indicated in the reasons for sentence at paragraph 8 (and I have already cited this passage) that he gave the applicant's plea and his preparedness to give evidence "significant weight" in his favour. I cannot find, on the face of the sentence, any evidence that his Honour did not do what he said he was going to do. This "significant weight" had to be balanced against other considerations including the seriousness of the applicant's major offence and its circumstances of aggravation. The judge found, and this has not been challenged, that the applicant inflicted three grave wounds on a man who was restrained, having been beaten and subdued. The maximum penalty available was 20 years' imprisonment. I would not uphold this ground.

93. Turning to ground 2, the learned judge adverted to the delay no less than three times in his reasons for sentence (paras.3, 8 and 10). Those references also disclose, to my mind, the circumstances in which the applicant suffered the delay. One again turns to the face of the sentence and again I must say that I am unable to find there any evidence that the judge failed to take this aspect of the matter into account in the way that he said he would. Nor was there, to my mind, evidence of a voluntary significant change in the applicant's manner of living his life. Throughout the relevant period he was subject to bail conditions which prescribed, in effect, his lifestyle, and yet his offence of September 1998, as I have noted, prevents an entirely favourable picture emerging.

99. In order to succeed on the remaining ground, it is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. After giving full weight to matters favourable to the applicant, I am unpersuaded that it did. As I have earlier observed, it was the judge's duty to make an assessment of the gravity of the applicant's major offence.

102. He found it, inevitably, I should have thought, serious and described the applicant's repeated stabbing of his victim as "objectively highly dangerous". His Honour also noted, properly in my view, that the attack, performed in company, occurred outside the victim's home, and also the fear which must have beset the victim's wife.

105. In assessing this ground (and, indeed, others) I have also taken into account the relationship which exists between the head sentence imposed and the non-parole period fixed.

108. I would propose that this application should be dismissed.

120. The order of the Court is that the application for leave to appeal against sentence stands dismissed.

[1] (1993) 70 A.Crim.R. 105.

[2] [1996] VicRp 60; [1996] 2 V.R. 97

[3] [1998] 4 V.R. 649.

[4] [1997] VSC 22; [1998] 4 V.R. 588.