R v Tran [2009] VSCA 252

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

2 On 17 October 2007, the appellant pleaded guilty in the County Court at Melbourne to one count of recklessly causing serious injury. He was sentenced to be imprisoned for six years with a non-parole period of four years.

3 On 21 November 2007, his parole was cancelled and two years, two months and 29 days were added to his sentences.

4 It was inevitable[1] that leave to appeal be granted, as occurred in the s 582 Crimes Act 1958 (Vic) hearing before Neave JA on 30 January 2009.

1. In all the circumstances, the sentence and non-parole period are manifestly excessive.
2. As a result of the order made by the Adult Parole Board on 21 November 2007 cancelling the appellant's parole, fresh evidence exists which requires reconsideration of the sentence imposed on the appellant in light of the principle of totality.

6 The maximum term of imprisonment for the offence is 15 years.

7 I will set out the circumstances of the alleged offending. On the afternoon of 14 September 2009, the victim in this matter, Carlo Ravanello, his partner, Kay Nguyen and their daughter, who was then 16 months old, were walking down Victoria Street in Richmond. The family lived in the nearby Housing Commission high rise estate. The appellant approached the group and they believed that he was trying to sell them drugs. That is denied by the appellant. Mr Ravanello reacted to

him and told him in less than polite language what he thought of the appellant and told him where to go.

8 The family continued the journey down Victoria Street to do some shopping. When they were returning home, some time between 15 minutes and one hour later, they encountered the appellant at the corner of Elizabeth Street and Lennox Street, Richmond. They walked past the appellant, who shouted 'Have you got nothing to say to me now, cunt! Hey, wog cunt, you're not so tough now. Haven't you got nothing to say?'. While that was being said, the appellant was following Mr Ravanello, his partner and their daughter. Mr Ravanello turned to face the appellant and said 'What's your problem?'.

9 The appellant attacked Mr Ravanello with a knife which he had been carrying and slashed Mr Ravanello's right arm. Mr Ravanello ran off and the appellant chased him along Lennox Street and into the high rise estate. The appellant yelled 'Run now you weak cunt. You're fucking dead when I get you'. As the appellant was catching up, Mr Ravanello turned to face the appellant, who said 'You're dead now cunt. You're fucking dead'. He slashed at Mr Ravanello two or three times. He then stabbed Mr Ravanello to the chest and ran off.

10 Mr Ravanello received rudimentary first aid at the scene to stem the bleeding. An ambulance arrived and he was taken to hospital. He was found to have:

(1) a stab wound to the upper arm which required suturing;

(3) a lacerated artery on the exterior of the heart;

11 He was admitted to intensive care and remained in hospital for a total of seven days.

12 In his victim impact statement which was tendered to the Court, Mr Ravanello described the injury as being a 'perforated aorta'. Whether it was that, or some damage to one of the coronary arteries, it was very serious injury and probably life-threatening.

13 Mr Ravanello, who has recovered physically, still feels unwell, anxious and depressed, his enjoyment of life has been reduced. He is scared and in fear of a repeat of this event, and fears also for his young daughter, who observed these events. Mr Ravanello's daughter has suffered nightmares and appears withdrawn as a result. Mr Ravanello himself does not socialise and suffers panic attacks. He is still under medical care for depression. His position is aggravated by the fact that he lives in public housing.

14 The ground that the sentence was manifestly excessive was argued on the basis of the youth of the appellant - 22 years at the time of offending and 23 now - his circumstances at the time of offending, and details of previous sentencing practices as revealed in Sentencing Snapshot No 40 - Sentencing trends for causing serious injury recklessly in the higher Courts of Victoria, 2002-03 to 2006-07.

15 That Snapshot revealed that, of those who were sentenced to immediate imprisonment, only nine (out of 180) received a sentence of six years or longer for this offence. The median sentence was two years. Although counsel conceded that the appellant should be sentenced above the median, it was argued that his sentence was excessive having regard to the sentencing practice reflected by the Snapshot.

16 There can be little doubt that the present case is a very serious example of an offence of this kind. Although the attack was not random, it was unprovoked, sustained - in that it involved the victim being chased - and callous. It involved the use of a knife at two different stages in the attack. It was accompanied by very serious and nasty threats. It took place on a Housing Commission estate. It was during the afternoon and it was in the presence of the victim's partner and 16 month old daughter. The injuries were very serious and were life-threatening. The attack could easily have been fatal. The victim has suffered severe consequences, although his physical recovery is satisfactory. The offending was pointless and remains unexplained in any satisfactory way, if at all.

17 Viewed objectively, the offending is at the upper end of causing serious injury recklessly.

18 In what strikes me as a merciful disposition, the appellant was allowed to plead guilty to this offence, rather than intentionally causing serious injury. The plea was made at committal mention on 18 May 2007. That saved Mr Ravanello and Ms Nguyen from giving evidence and has some general utilitarian purpose.

19 To the extent that the plea also avoided the appellant facing the more serious charge of intentionally causing serious injury, it was also to his advantage.

20 The appellant's prior convictions, other than one very minor matter, are set out in the attached Table A.

21 The matters for which the appellant was on parole are two counts of armed robbery, one count of attempted armed robbery, causing serious injury recklessly and destroying (or damaging) property with intent. On 2 May 2005, the appellant had been sentenced to a total effective sentence of four years, three months with a non-parole period of two years. He was released on 23 July 2006. The present offence was committed on 14 September 2006, that is, almost exactly three weeks after his release.

22 Although not adverted to by the learned sentencing judge, the circumstances of the appellant's prior offending are of importance. The parties were provided with both the plea and sentence of 2 May 2005 and the reasons given by Chernov JA for dismissing the appellant's application for leave to appeal on 16 September 2005. The offences were committed within a few hours on one day.

23 In his reasons, Chernov JA summarised the matters as follows:[2]

It seems plain enough that the offending conduct involved the appellant making a determined effort to steal money from three defenceless victims on three separate occasions and injuring in the process a person who sought to assist one of the victims. To achieve his end, the appellant used weapons to threaten the victims and, in some instances, to cause them serious injuries. Thus, in an attempt to steal $1,500 from the first victim, who had just taken the money from an automatic teller machine, the appellant hit the innocent victim on the head with a bottle, thereby breaking it, and then stabbed him with a broken piece. When the second victim would not let go of the strings of her money pouch, which the appellant sought to take from her, he stuck a small knife towards her face. He ended up taking the pouch that contained $100 as well as the victim's credit and other cards. The third victim was a 15-year-old student whom the appellant threatened to stab with a knife that he was holding in his hands if she did not hand over her mobile telephone. When the fourth victim came along to assist, the appellant stabbed her in the thigh.

24 The question of the Sentencing Snapshot has to be seen in that context. This is not a case which can be assessed by any reference to the median sentence. The Snapshots are used as a tool to partially reflect 'current sentencing practice'.[3]

25 The Snapshot is of necessity a somewhat blunt instrument and each case must be considered on its own facts. As this Court observed recently:

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.[4] 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.[5]

26 The other matters urged on behalf of the appellant on this ground are his age and circumstances at the time of the offending.

27 The appellant is young, now 23, and his position is bleak. According to his psychologist, Warren Simms,[6] the appellant has potential which has been 'inhibited by his substance abuse'.[7] The use of illicit substances has troubled the appellant now for a number of years, but this violent offending can hardly be explained on that basis. It is likely that the appellant will need substantial support when he returns to the community.

28 The Courts have long recognised the importance of youth as a sentencing consideration.[8] It has been said that when dealing with young offenders, rehabilitation will often be the most important sentencing consideration. In a way which is similar to the effect of sentencing statistics, such a general principle has to be analysed with respect to the circumstances of the instant case. In Director of Public Prosecutions v Lawrence,[9] this Court said:

Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright,[10] take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised.

Although this is a case of causing serious injury recklessly, those words could easily have been used about this case.

29 The background of the appellant and his personal circumstances at the time of the offending are not particularly remarkable. The appellant has been given a great deal of opportunity by his family, and generally the Courts have behaved leniently towards him. He had only been out of gaol for about three weeks and returned to drugs after one week. The matters pressing him most at that time were the end of a relationship, the recent death of his grandmother, godfather and cousin, and delay in the possibility of going to live with his sister in Adelaide. Those circumstances, although significant to the appellant, are not all that out of the ordinary.

Mr Tran disclosed that he began using ice and cocaine about a week after his release, indicating that he was feeling bored and used drugs to alleviate those feelings.

31 As has already been observed, the appellant's offending is really unexplained and it represents an ascending scale of violence. The community's abhorrence of the use of knives and other weapons had not apparently got through to the appellant.

32 The principles of both personal and general deterrence loom large in this sentence.

33 The principle of just punishment is very important. Ordinary members of the community are entitled to go about their business without fear of vicious attacks of this kind. That is even more so given that this incident involves a family, near their home, on what was an otherwise ordinary Thursday afternoon.[12]

34 When regard is had to all those matters, including the appellant's prior history, I am satisfied that this sentence is at the very lowest end of the permissible range and that there is nothing in this ground.

35 It has been accepted by this Court that the fact that parole has been cancelled after sentence is fresh evidence.[13] The total sentence being faced by the appellant is one of just less than eight years and three months, with a non-parole period of four years.

36 When considering the principle of totality, it is relevant to first of all have regard to the offending concerned. I have already set out the matters relating to the sentence for which the appellant was on parole, but those matters involved two armed robberies, an attempted armed robbery and causing serious injury recklessly. The sentence was four years and three months with a non-parole period of two years.

37 The legal principles applicable were summarised very usefully by Redlich JA in R v Mangelen:[14]

33. Where parole has been granted and subsequently cancelled, the offender will by definition have completed the non-parole period of that sentence. If upon sentencing for the offence which caused the cancellation of the parole, the parole sentence is cumulated on the new sentence - a result mandated by the Sentencing Act 1991 unless there are exceptional circumstances - the offender will be required at least to serve the non-parole period of that sentence. If the non-parole period of that sentence is calculated only by reference to the head sentence of the subsequent offence, and not by looking at the total period the offender may be likely to spend in custody, the practical effect will often be a longer than usual parole period. This consequence may be the intended effect of the legislative policy behind s 16(3B) of the Sentencing Act 1991.

34. Section 16(3B) provides that where an offender commits an offence whilst released into the community on parole, that sentence should be cumulative upon any other sentence imposed unless there are exceptional circumstances.[15] The legislative policy which underlies s 16(3B) was explained in Alashkar where the Court observed:

the obvious intention of s 16(3B) of the Sentencing Act [is] that where an offender commits a crime while released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed.[16]

35. Accordingly, once this Court has admitted the fresh evidence and the sentencing discretion is re-opened, s 16(3B) will apply. This Court must ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B).[17] It was not suggested that any exceptional circumstances existed that would permit any part of the new sentence to be made concurrent with the parole sentence. Appellant's counsel accepted that his client was not entitled to a more favourable outcome because the parole has been cancelled after sentence had been imposed than if he were sentenced at a time when he was already serving the parole sentence.

36. Totality is not a principle to be applied without regard to the components of the instinctive synthesis. The parole sentence may impact on the sentence to be imposed but the consideration of totality does not override nor should it engulf other critical sentencing considerations. In this as in most cases the need to impose a punishment that reflected the objective gravity of the offence, general and specific deterrence, protection of the community and prospects for rehabilitation were a critical part of the sentencing synthesis.

38 All the matters advanced on ground one fall to be reconsidered here and it is not necessary to repeat them.

39 Here, the breach of parole is early. It can hardly be said that you should get some reduction in sentence because you have breached your parole in the first month. That is particularly so having regard to the public policy reflected in s 16(3B).[18]

40 The total offending is substantial in this case. I am not persuaded that, although the head sentence is now over eight years, it offends the principle of totality.

41 As I do not consider that a different sentence should have been passed, I would dismiss the appeal.[19]

42 I too would dismiss the appeal, for the reasons which Coghlan AJA has given. There are some additional matters which have arisen in the course of argument to which I wish to refer, as follows.

43 It is sometimes said that sentencing judges are out of touch with the real world, out of touch with community concerns. The sentencing reasons provided by the sentencing judge in this case demonstrate how unfounded and unfair that criticism is. I refer in particular to these passages:

I regard it as inexcusable, appalling behaviour, cowardly behaviour because you had a knife. I must say, I get sick of seeing this sort of attack for no good reason by the use of knives and other weapons in the street on innocent people. I get sick of it and I am sure the community get sick of it and it is not the sort of thing that Australians want to be regarded as part of the Australian way of life. The courts are meant to denounce in the most serious terms these serious knife attacks. We are supposed to represent the community and say how sick of it we are and how appalled by it we are and how we should impose penalties that get known around the traps to be significant penalties that might have the effect of deterring the commission of these sort of attacks.

...

Anyway, I am mindful of those factors and I do not propose to impose what is called a crushing term but I certainly intend to impose a significant term because I am appalled. My primary consideration is the fact that somebody like you with a bad record who has not in the past been deterred it seems by prison sentences is able to carry a knife for no reason, get back on drugs for no reason and then go for absolutely no reason and commit such a serious assault on an innocent person shopping in the streets with his wife and child.

The punishment should fit the crime and that crime deserves significant punishment.[20]

44 It is important, in my respectful opinion, that this Court draw to the community's attention the perceptive account which his Honour gave of the community's view of offending of this kind.

45 Secondly, as Coghlan AJA has said, one of the arguments for the appellant here was that the sentencing judge failed to give sufficient weight to his youth. In addition to what his Honour has said on that topic, I would wish to repeat what I said in R v Wyley,[21] which was also a case of recklessly causing serious injury: [22]

Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence[23] and R v Nguyen[24] are not to be viewed as 'excluding the principles in Mills', but simply as instances of how those principles are to be applied.

[T]here is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case.

46 Thirdly, a question arises about the applicable sentencing range. The submission advanced by counsel for the appellant, by reference to the relevant Sentencing Snapshot from the Sentencing Advisory Council,[25] was that the sentence of six years imposed on the appellant for recklessly causing serious injury was 'very much towards the top end of the range, statistically speaking'. It was said that neither the character of the offending nor the appellant's prior record justified him being sentenced at that point in the statistical range.

47 If it is correct that six years is the top end of the statistical range, then it would seem to me that there is a real question to be investigated, probably on a Director's appeal, about whether current sentencing practices can be reconciled with the maximum of 15 years.[26] It seems to me that both Parliament - having set the maximum at 15 - and members of the community who were fully apprised of the seriousness of this recidivist offending would be entitled to ask why the top end of the range, statistically speaking, was below 50 per cent of the maximum. They might well ask - in my view, quite reasonably - why very serious offending of this kind does not attract sentences more towards eight, nine or 10 years. They might wonder for what kinds of offending the upper end of the statistical range was reserved if not for a repeat offender who had seriously injured innocent people.

48 Counsel for the appellant responded by saying that the physical injuries were not as bad as they were in, for example, Director of Public Prosecutions v Terrick; Director of Public Prosecutions v Marks; Director of Public Prosecutions v Stewart,[27] where the victim of the assault was left with permanent disability and brain damage. At least part of the answer to that submission lies in the fact that the consequences of intentionally or recklessly causing serious injury include the long term psychological impact on the victim. In the present case, the victim says this:

I was an innocent victim of this crime and have suffered serious physical [and] emotional/mental injuries. Includes scars, collapsed lung, perforated aorta, cut to tricep and very close to losing my life. My life has changed completely since this incident as I now live in fear, feel constantly unwell, depressed, anxious, keep to myself and do not socialise. The permanent 12 inch scar to my chest is a daily constant reminder, that I cannot forget of what has happened. My daughter/s (2 that were not present) came close to losing a father. I am also scared of repercussions (eg revenge attack).

49 Since this appellant by his plea admitted that he was aware of the probability of serious injury when he struck at his victim with the knife, he is in my opinion to be regarded as legally responsible not only for the physical consequences of having done so, which were significant, but for the psychological consequences.[28] Like Coghlan AJA, I take the view that this was a very moderate sentence, for this person, with his record, for the commission of this attack.

50 I want to deal finally with the question of this Court's time being used for fresh evidence cases of this kind. In R v Cochrane,[29] a case referred to by counsel for the respondent, I made these remarks (with which Buchanan and Vincent JJA expressly associated themselves).[30]

In McLeod,[31] a bench of this Court of which I was a member expressed the view that, where new evidence emerges after sentence about a matter relevant to sentence - in that case, a confiscation issue - it would be preferable for the sentencing court itself to have the opportunity to deal with that further development and to review the sentence passed in the light of the new information. As things stand, these post-sentence developments have to be dealt with, if at all, by this Court as new evidence. The result is that this Court becomes a sentencing court of first instance because the discretion is, in the relevant sense, reopened on every such occasion.

The reasoning in McLeod in the confiscation setting applies equally to breach of parole. The amendments suggested by the Court in that case[32] should encompass both. That will ensure that post-sentence developments are dealt with efficiently by the court which has already exercised the sentencing discretion. That, it seems to me, is the appropriate place for the review to take place, rather than in this Court.

51 Since that judgment, the Sentencing Advisory Council has addressed this issue, at the request of the Attorney-General. I welcome that review. It remains an urgent question whether it is a good use of the Court of Appeal's time to sit, effectively, as a court of first instance, having to hear a plea in mitigation, because the cancellation of parole or (as in McLeod) the confiscation decision re-opens the sentencing discretion. The present case illustrates what a waste of this Court's time such cases are. I mean no disrespect to the arguments advanced by counsel, who addressed, quite correctly, the question which we must answer: what sentence should be imposed on this man in these circumstances?

52 Had it not been for the fresh evidence point, however, the application for leave to appeal ought to have been refused at the leave stage. I would certainly have refused leave on the manifest excess ground for the reasons which Coghlan AJA has given. It was not then, and would never have been, reasonably arguable that this was a manifestly excessive sentence for this man, for this conduct, with his record, in these circumstances. But, because the current system requires us to reconsider the sentence because of the new evidence, the case has had to be prepared and argued, and now decided, as a full sentence appeal.

53 I propose to refer a copy of this judgment to the Attorney-General and to the Sentencing Advisory Council. Given the backlog of criminal appeals which this Court is facing, it cannot be in the public interest for us to be spending time performing the functions of a sentencing court of first instance.

Possession of drug of dependence (heroin). Possession of property (money) suspected of being the proceeds of crime

Without conviction released on entry into a bond in the sum of $100 to be of good behaviour for 12 months with conditions.

Armed robbery, Trafficking a drug of dependence (heroin)

Without conviction released on a Youth Supervision Order for 9 months on conditions.

Without convictions released on a Youth Supervision Order for 3 months.

State false name and address (2 charges), Trafficking in a drug of dependence (heroin), Possession of property being proceeds of crime, Failing to answer bail

Total effective sentence of 6 months detention in a Youth Training Centre.

Trafficking a drug of dependence (heroin), Possession of a drug of dependence (heroin), possession of property (money) being proceeds of crime

Total effective sentence of 1 month detention in a Youth Training Centre to be served cumulatively with the sentence then undergoing.

Armed robbery (2 counts), Attempted armed robbery (1 count), Causing serious injury recklessly (1 count), Destroying or damaging property with intent.

Total effective sentence of 4 years and 3 months with a non-parole period of 2 years.

[1] R v Piacentino [2007] VSCA 49; (2007) 15 VR 501; R v Alashkar & Tayar [2007] VSCA 182; (2007) 17 VR 65.

[2] R v Charlie Tran (Unreported, Supreme Court of Victoria Court of Appeal, Chernov JA, application for leave to appeal against sentence, 16 September 2005).

[3] Section 5(2)(b) Sentencing Act 1991 (Vic) and R v MacNeil-Brown [2008] VSCA 190.

[4] 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.

[5] DPP v Maynard [2009] VSCA 129, [35].

[6] Report of 12 October 2007 tendered on the plea.

[8] R v Mills [1998] 4 VR 235, 241.

[9] [2004] VSCA 154; (2004) 10 VR 125, [22] (Batt JA, with whom Winneke P and Nettle JA agreed).

[10] R v Wright [1998] VSCA 84, [6].

[11] Report of 12 October 2007 tendered on the plea, 4.

[12] See DPP v Terrick & Ors [2009] VSCA 220.

[13] R v Alashkar; R v Tayar [2007] VSCA 182; (2007) 17 VR 65 ('Alashkar'); R v Thompson [2009] VSCA 31.

[14] [2009] VSCA 63, [33]-[36].

[15] Alashkar [40]. This abrogates the general rule in s 16 (1) of the Sentencing Act 1991 (Vic) that sentences are to be served concurrently.

[17] R v Piacentino and Ahmad [2007] VSCA 49; (2007) 15 VR 501, [63] (Eames JA).

[18] Sentencing Act 1991 (Vic).

[19] Crimes Act 1958 (Vic) s 568(4).

[20] R v Tran (Unreported, County Court of Victoria, Judge Williams, 26 October 2007) [6], [12], [13].

[21] [2009] VSCA 17.

[22] R v Wyley [2009] VSCA 17, [20]-[21]. The reference to Mills is a reference to R v Mills [1988] 4 VR 235.

[23] [2004] VSCA 154; (2004) 10 VR 125.

[24] [2002] VSCA 130.

[25] Sentencing Advisory Council, Sentencing trends for causing serious injury recklessly in the higher Courts of Victoria, 2002-03 to 2006-07, Sentencing Snapshot No 40, February 2008.

[26] Cf DPP v CPD [2009] VSCA 114, [62]; DPP v Monteiro [2009] VSCA 105, [5]-[8].

[27] [2009] VSCA 220.

[29] [2008] VSCA 60.

[31] R v McLeod [2007] VSCA 183 ('McLeod').