R v Ung [2002] VSCA 101

9. On 6 March 2001 a judge of the County Court sentenced the appellant to imprisonment for a term of four years and six months and fixed a non-parole period of three years. On 1 March 2002 a judge of this Court granted leave to appeal against sentence.

12. Five grounds of appeal are raised by the appellant. Those grounds are as follows:

1. That the sentence imposed was manifestly excessive.

2. That his Honour erred in failing to place sufficient weight on the fact that I am a young offender.

3. That his Honour erred in failing to place sufficient weight on the fact that I do not have any prior convictions.

4. The sentence imposed upon the appellant offends the principle of parity amongst co-offenders.

(a) erred in concluding that "principles of specific and general deterrence are of paramount significance in the sentencing process for this offence" (sentence at 17);

(b) in failing to regard rehabilitation as being more important than general deterrence and specific deterrence;

(c) in giving excessive weight to specific and general deterrence and/or insufficient weight to rehabilitation.

23. 5 In the course of his submissions Mr Croucher addressed grounds 1, 2, 3 and 5 together, there being substantial overlap in those grounds.

26. The appellant was initially committed for trial on two counts, intentionally cause serious injury and affray. The count of affray was not proceeded with by the Crown.

29. The offence to which the appeal relates occurred in the early hours of Saturday 17 June 2000 but its more proximate origin arose during the evening of Friday 16 June 2000.

32. The appellant, an Australian citizen of Cambodian descent, was in the company of a group of five of his friends, all of whom were of Thai or Cambodian ancestry. At about 8 or 9 p.m. on the Friday evening the appellant and his group boarded a train at Dandenong railway station intending to travel to Clayton to attend a party. The group travelled together in a carriage and when the train stopped at Oakleigh a group of non-Asian youths boarded the train. This latter group was known to the appellant and his friends by the title "Oakleigh Wogs", a title which members of that group themselves apparently adopted. The Crown accepted that that group could properly be described as "a gang". In a subsequent record of interview conducted with police the appellant said that he knew the Oakleigh group and had had a fight with them in the past. I will refer to that incident later. The appellant and his five friends all denied that they themselves were members of a gang but admitted that they knew of the existence of a gang called the "Cambodian Clowns".

35. The two groups travelled together in the same carriage during which time the appellant said that the Oakleigh group were swearing at the Asian youths and staring at them, to use his words, "like, they want to hit us or something". At Hughesdale station the appellant and his friends got off the train, as did the Oakleigh youths, but the latter group then ran to the next carriage and continued their journey on the train. In doing so they swore at the appellant and his group using a Vietnamese expression which the appellant and his friends understood to mean "mother fucker". The appellant told police that the Oakleigh group "start stick up the finger at us" as the train departed. There is no assertion that anything said from one side or the other on this night was, in express terms, racist in tone, but, if it was then such provocation, as offensive and intolerable as it would be, could not justify or excuse the events which subsequently occurred.

38. For approximately an hour to an hour and a half the appellant and his friends waited in the vicinity of the Hughesdale railway station. They made enquiries from some other persons in the area as to the proposed movements of the Oakleigh youths that evening. Whilst waiting at Hughesdale station a telephone call was made by one of the group to a friend, and the appellant then spoke to the friend and said "there's a couple of wogs want to fight us". He invited his friend himself and with others to come to the Hughesdale railway station and he asked his friends to bring weapons. The appellant expressly asked for a machete. The friends who had been telephoned arrived at the scene and provided a machete to the appellant, who slid it up the sleeve of his jacket, where it would not be visible but from whence he could quickly retrieve it. Another weapon was provided, that being a baseball bat. That weapon was taken by a 15-year-old member of the original group of six who had travelled together on the train. After being armed in this manner the appellant and his five friends travelled to Carnegie railway station and attended a snooker parlour nearby, where they passed time. Later that evening they returned to the Carnegie railway station, and waited for the last train. The learned sentencing judge found (and there was ample evidence, including statements by the appellant, to justify the finding) that the appellant and his friends deliberately waited for the last train, in the anticipation that the Oakleigh youths would also be on that train.

41. When the evening's last train to Dandenong arrived at Oakleigh railway station the appellant and his friends boarded the last of the three carriages which comprised the train. In the third carriage were the group earlier seen and identified as the "Oakleigh Wogs." There were then about 20 or 25 youths comprising that group. When the appellant and his friends boarded the third carriage all bar one of the Oakleigh group immediately left the carriage and moved to another carriage. As they departed members of the Oakleigh group stared at the Asian youths and swore at them with such remarks as: "What the fuck you looking at?" When asked by police why the appellant thought that the Oakleigh youths had left the carriage he said: "I think probably don't want to fight us or something." After the Oakleigh youths had left the third carriage a number of members of the public remained in that carriage and amongst that number was one person, Christopher Karathanasis, whom the appellant and his friends identified as one of the "Oakleigh Wogs" who had participated in the altercation earlier that evening. He was very drunk, and alone. The appellant and his group approached Karathanasis, and asked him what he was looking at. Karathanasis responded in a manner which the appellant told police he regarded as "smart arse", and then the appellant removed the machete from his sleeve and proceeded to strike Karathanasis with it. The victim could not have seen that the appellant was armed.

44. The appellant told police that he struck the arms, trunk and legs of his victim with two, three or four blows from the machete. Other members of the appellant's group then joined in, punching and kicking the victim, who had curled up on the seat trying to defend himself from this savage attack. Members of the public had fled from the vicinity of the assault, moving further into the carriage. This assault continued until the train arrived at Hughesdale station where the appellant and his group disembarked and ran away. The appellant told police that during this assault the victim could not get up and when asked why he could not do so the appellant said: "I don't know, cos he's a bit drunk and, like, all of us, like, full on attacking him." Apart from being kicked and punched the victim was also struck by the baseball bat.

47. A medical report disclosed that upon admission to hospital on early that morning the injuries to the victim were bruising to the left cheek, a five-centimetre transverse incised wound over the front of the left upper arm which was at least two to three centimetres deep and involved muscle beneath the skin, and on the left shin there was a two-centimetre transverse incised wound which involved bone, that is, the external aspect of the bone was chipped, but there was no fracture extending through the bone. Counsel for the appellant, in submissions on sentence in the County Court, conceded that two serious injuries were caused, being those cuts to the arm and leg of the victim, and there was also some minor abrasion to the face of the victim. None of those injuries was apparently life-threatening, but the cuts subsequently required plastic surgery. The victim in this case declined to make a victim impact statement and the Crown conceded in the court below that he had fully recovered from his injuries.

50. On Wednesday 5 July 2000 the appellant was apprehended by police and upon being interviewed made full admissions. The circumstances of the assault were aptly described by counsel for the appellant during submissions on sentence in the County Court as being "terribly serious and terribly nasty". Each one of the five other Asian youths who was present with the appellant was charged and dealt with by the courts. One of the complaints raised in the grounds of appeal is that the sentence of the appellant did not accord him parity in treatment with that of his co-offenders.

53. The appellant had no prior convictions. Character references tendered on his behalf in some instances claimed that prior to this offence there had been no previous incident of violence, nor any "brush with the law" involving the appellant. As his Honour noted in sentencing, however, on the day before he heard submissions on sentence in this case the appellant, represented by the same counsel (not counsel who appeared before us), had appeared before another judge in the County Court and had indicated an intention to plead guilty to one count of affray and one count of causing injury intentionally, for a gang-type offence which had occurred on 9 January 2000, a mere five months prior to this offence. His Honour expressed justifiable concern that counsel had not advised him of that appearance and that he had discovered those circumstances only by accident. His Honour indicated, however, that he was not taking the fact of non-disclosure by counsel of that matter into account in sentencing the appellant on the present offence. One contention in the written outline for the appellant asserted that the severity of the sentence reflects the fact that notwithstanding his Honour's intention not to be affected by that non-disclosure, he must have been unconsciously influenced, so as to impose too severe a sentence. In my opinion, unless the sentence itself disclosed that to be so then there is no other basis for concluding that his Honour had taken the non-disclosure into account to the disadvantage of the appellant.

56. We have been provided with details of that earlier matter. They are not prior convictions, the appellant having been convicted on 27 March 2000, that is, after the present conviction. On 27 March 2000 the appellant was convicted of affray and of intentionally cause injury and was fined $250 on each count. The sentencing remarks relating to that matter disclose that a group of four Asian youths assaulted a member of the same Oakleigh group as is involved in the present case. Of those involved in the present matter only the appellant was involved in the earlier incident. The sentencing judge concluded that it was not a planned assault and was provoked by insulting comments. The incident occurred when the appellant had been travelling on a train. In response to insults from Oakleigh youths the appellant and his friends had left the carriage and chased the other youths, catching and assaulting one with fists. The sentencing judge found that the appellant was one of two primary players in that incident.

59. The fact that there was an admitted earlier incident, although not a prior conviction, has some relevance to the present case. In the first place, it must inevitably impact upon the weight given to the assertion in the character evidence that the appellant was of previously unblemished character and had not engaged in violent activities. Secondly, in my view, if subsequent offences are relevant to the consideration of the prospects of rehabilitation, and of the appropriateness of detention being ordered in a youth training centre (as they are, and as to which see Fox & Freiberg[1]), then it must also be so in the case of criminal conduct which occurred before the commission of the present offence, even though it would not be proper to treat the earlier matter as a prior conviction. In any event, his Honour did not expressly have regard to the prior incident for either such purpose. The appellant was entitled to be treated as a first offender, and it is clear that his Honour did so.

62. The youth of the appellant, the fact that he had no prior convictions and also his plea of guilty were highlighted by counsel before us in support of the submission that for a youthful first offender considerations of rehabilitation outweigh considerations of specific and general deterrence. As to those factors see R. v. Mills; R. v. Misokka[2]; and R. v. Edwards[3].

65. In R. v. Mills[4], Batt, J.A. endorsed the following general propositions:

"1. Youth of an offender, particularly a first offender should be a primary consideration for a sentencing court where that matter properly arises. 2. In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. Rehabilitation benefits the community as well as the offender. 3. A youthful offender is not to be sent to an adult prison if such disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. This proposition is a particular application of the general principle expressed in section 5(4) of the Sentencing Act."

69. Many of the cases to which Batt, J.A. referred in Mills where these principles were applied were instances of violent crimes committed by youth.

72. The learned sentencing judge said in his remarks on sentence that he had regard to the principles stated in those cases and that he was giving full weight to each of the important mitigating factors which had been identified by counsel for the appellant, but nonetheless also considered it a case where principles of general and specific deterrence were important.

75. His Honour noted that the injuries sustained by the victim in this case were at the lower end of the range of injuries which arise with respect to offences under this section. His Honour noted that aggravating features were that the appellant was sober, that he called for and obtained weapons, that he waited for the last train "having let more than one similar train pass, to ensure that the group might accost and extract retribution from any member of the Oakleigh Wogs who may be available within the carriage".

78. His Honour added that "the cold-blooded and premeditated nature of the assault conducted, is clear evidence to me that this attack was deliberate and premeditated, with the sole purpose and intention of causing injury to any member of the Oakleigh Wogs who might be available to be attacked, committed in a cold-blooded and deliberate manner, and committed for the sole purpose of inflicting injury".

81. His Honour noted that Australia had been relatively free of incidents of gang warfare and he concluded:

"I am of the very strong view that this type of behaviour, this cold-blooded, premeditated gang attack with weapons upon an individual, cannot be tolerated under any circumstances and condign punishment must follow. In reaching this conclusion I am acutely conscious of R. v. Mills and the principles referred to therein, and the prospects of, and desire for, rehabilitation of these prisoners, and, further, the proposition that sending a young offender to an adult prison is a sentence of last resort. However, I would be failing in my duty as a judge of this Court if I did not treat most harshly this type of offending. It is my very strong view that principles of specific and general deterrence are of paramount significance in the sentencing process for this offence."

The last passage is particularly identified by counsel for the appellant as betraying error in the sentencing process, in that, it is said, his Honour disregarded or unreasonably downgraded the principles discussed in Mills.

86. As to the third proposition stated by Batt, J.A., it was submitted that in this case the appellant received a head sentence and non-parole period which did not reflect any, or any appropriate, allowance for the fact that he was a youthful first offender, was being sentenced to imprisonment for the first time and that sentence was to be served in an adult prison. The non-parole period, being two thirds of the head sentence, in particular, it was submitted, did not reflect any allowance for the principles of rehabilitation referable to youthful first offenders.

89. His Honour called for a pre-sentence report as to the suitability of the appellant for detention in a youth training centre rather than in a prison. In a detailed, careful and frank pre-sentence report, an officer of the Department of Human Services reported that in his opinion all of the offenders, save for the appellant, were appropriate candidates for such detention. The officer noted the relevant criteria for a youth training centre order set out in s.32 of the Sentencing Act 1991, which were that:

"(a) If (the court) believes that there are reasonable prospects for rehabilitation of the young offender; and (b) it believes that the young offender is particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison."

The author of the pre-sentence report wrote of the appellant:

"He presented as being a relatively quiet, well mannered and self-assured young man. During the interview Sok-Chiet tended to minimise his offences and justified his attack when he indicated that the victim had "greased him off" and smoke "smartly" to him and his group. Sok-Chiet displayed very little victim empathy and this suggests that Sok-Chiet has some significant cognitive distortions in regard to him minimising and justifying violent thoughts, which have then progressed, on this occasion, to extremely aggressive behaviour."

"In regard to rehabilitation, Sok-Chiet's offending is particularly violent, it appears that he specifically obtained the weapon thinking that he may have cause to use it. This suggests planning, even if he did not actually have a specific victim, he did plan to use the weapon if the opportunity arose. In his own mind, at the time, he justified using the weapon. This type of offending will require specific violence prevention/anger management therapy. Whilst this approach can be accessed in the youth training centre environment there is no requirement for young people to access therapy if they do not wish to. The writer does not consider that Sok-Chiet presented as being (a) particularly immature nor impressionable young man, rather he appeared during the interview to be a self-assured and confident person."

The opinion of the author of the pre-sentence report was not challenged in the court below by cross-examination, although the author made himself available for that purpose.

98. As has been made clear in later decisions, the propositions stated in Mills are principles having general application, and should not be taken as negating or overriding other sentencing considerations, or as obliging the sentencing judge to accord less weight to other sentencing principles than he or she regarded as appropriate to a given case: see R. v. Giles[5]; R. v. Bell[6]; R. v. Tran[7]. As Batt, J.A. observed in Giles, those general propositions could not be applied without qualification to cases of a very different nature.

101. Whilst, as Mr Croucher submitted, the appellant's situation was not very different to that in Mills, there remain some significant differences. Counsel conceded that, whereas the offender in Mills pleaded guilty to a count of recklessly cause serious injury, here the appellant admits intentionally causing serious injury. Furthermore, whereas Mills was drunk, the appellant was sober and committed the crime with what his Honour held to have been cold-blooded calculation. The ferocity of the offence, the fact that it was committed in company, against a defenceless person, in a public place, a train where persons in the vicinity could not readily escape, are aggravating factors, and the clear evidence of potential and actual gang warfare must inevitably have required that general deterrence be given significant weight.

104. Considerations of rehabilitation of a young offender are of paramount importance[8] but there may be circumstances in which those considerations must give way to factors of general and specific deterrence. In R. v. Tran[9] Callaway, J.A., with whom Buchanan and Vincent, JJ.A. agreed, observed that the rehabilitation of youthful offenders is one of the great objectives of the criminal law and the principle which will usually be given greater weight than general deterrence. However, as his Honour also noted, rehabilitation of the youthful offender is not the only relevant consideration and in an appropriate case might have to yield to considerations of general deterrence. Such an instance was postulated by Callaway, J.A. in Misokka[10], in contrasting a case where, on the one hand, a youthful offender, having not gone armed, resorted to a weapon in a sudden over-excited impulse, and the case, on the other hand, of a person going armed, in advance, with knives and using them to inflict serious punishment. The latter was a case, his Honour said, where general deterrence was likely to play a large part. This is such a case.

107. As to the grounds of appeal complaining that the learned sentencing judge failed to apply proper principles relating to first offences by youthful offenders, and the complaint that his Honour erred in the attention he gave to factors of general and specific deterrence (Grounds 2,3,5), I am not persuaded that any error has been shown in the sentencing process.

110. I turn to the complaint as to the lack of parity in sentencing (Ground 4).

113. The appellant was born on 11 February 1982 and was 18 years old at the time of the offence. He is now 20 years old. Although the six young people were all part of the attack, their roles differed considerably, and their antecedents also differed greatly. The applicant's co-offenders' respective situations may be summarised as follows:

* Chansaret Koy, whose date of birth was 7 February 1983, was sentenced to two years six months' detention in a youth training centre. He admitted punching the victim in the face. He was a VCE student at the time of sentencing.

* Sophea Soeur, whose date of birth was 11 May 1982, was sentenced to two years six months' detention in a youth training centre. He admitted kicking the victim, once only. He told police that he did not want to assault the victim because he knew "it's not fair on him".

* Thyrun Yem, whose date of birth was 1 May 1981, was sentenced to 12 months' detention in a youth training centre. He denied having touched the victim, but admitted that he was aiding and abetting. The judge accepted that he was an onlooker. A psychologist's report was tendered on his behalf. He was the only one of the assailants who was affected by alcohol. In submissions on sentence on behalf of Yem, his counsel advised the learned sentencing judge that whilst Yem's presence offered support for what occurred he did not himself strike the victim at all and whilst he was aware that one of their number was carrying the baseball bat he was unaware that the appellant had a machete. He was a student at the time of this offence and counsel advised his Honour that Yem had ceased all contact with his co-accused.

* A 15-year-old offender was dealt with in the Dandenong Children's Court and sentenced to six months' probation. He struck the victim with the baseball bat.

* Another juvenile, aged 17, was also dealt with in the Children's Court at Dandenong and was sentenced to six months' probation. He possibly punched the victim, although his precise role is not clear.

121. 33 All of the defendants denied, themselves, being members of a gang. During submissions it was conceded that there was a gang known as "Cambodian Clowns", but none of the offenders admitted membership.

124. There were, therefore, differences in the situations of the offenders, both in age and their actual conduct. The role of the appellant is by far the most serious, and he appears to have taken the leading role. Alone among the offenders the appellant was deemed not suitable for a youth training centre, but there were good reasons why he stood apart in that regard. The pre-sentence report was a carefully considered one in that respect.

127. In my view, it was open to the learned sentencing judge to distinguish between the offenders in the manner he did and to conclude that a significantly greater sentence had to be imposed on the appellant than on the others, notwithstanding his youth and lack of prior convictions and his plea of guilty. In my view, the head sentence was appropriate in the circumstances and the non-parole period which was fixed was not disproportionate to the head sentence. It follows that I conclude, too, that the sentence was not manifestly excessive.

130. In my opinion the appeal should be dismissed.

134. I will ask Callaway, J.A. to deliver the next judgment.

138. I agree with Eames, J.A., for the reasons his Honour has given, that the appeal should be dismissed. There are only two topics in relation to which I should like to add something on my own account.

141. First, read in context, I can detect no error in the learned judge's observation that principles of specific and general deterrence were of paramount significance in the sentencing process for this offence. True it is that the appellant was aged only 18 and had no previous convictions, so that ordinarily his rehabilitation would take precedence over general deterrence. But, as I said in R. v. Elizabeth Tran[11], with the concurrence of the other members of the Court, there are cases where just punishment, general deterrence or other sentencing objectives are at least as important as the rehabilitation of a youthful offender. The appellant in R. v. Toombs, referred to earlier in that judgment at [13], was only 17 at the time of the offences to which he pleaded guilty. In the present case it is important to remember that his Honour had earlier found that this was a cold-blooded and premeditated assault, that the offenders had waited for the last train with the intention of causing injury to any member of the "Oakleigh Wogs" whom they might find and that the appellant had procured the machete for that purpose. Those findings are not challenged, nor are they exhaustive of the factors operating adversely to the appellant.

144. Secondly, Mr Croucher submitted that, if the head sentence was within the range, the non-parole period was not and that a non-parole period of half the head sentence or even less should have been fixed. I do not accept that submission. A non-parole period of half the head sentence usually implies exceptionally good prospects of rehabilitation, the need for an unusually prolonged period of supervision or some other exceptional factor. A non-parole period of less than half the head sentence is very unusual. Of course, examples may be found both at first instance and in appellate courts. R. v. Squires[12], on which counsel relied, is a recent example in this Court. But such a non-parole period, just like an exceptionally long minimum term, often invites scrutiny. That is not to say that it necessarily betokens error, but it may invite attention to the question whether, if the non-parole period was justified, more weight should have been given to mitigating factors in fixing the head sentence. Similarly, it may invite attention to the question whether the judge gave insufficient attention to the fundamental requirement, to adopt the language of Winneke, P. in R. v. Revell[13], that "the head sentence is to be calculated on the basis that the prisoner will serve the full measure of punishment". The learned President was doing no more than articulate a principle that has been well settled for many years: see, for example, R. v. Yates[14], a decision of the Full Bench, and Re Jackson[15]. That principle is now reinforced by s.5(2AA) of the Sentencing Act 1991. If the head sentence of four-and-a-half years' imprisonment imposed on the appellant was within the range, and I consider that it was, it could not be held, in the circumstances that Eames, J.A. has described, that the learned judge was bound to fix a non-parole period of less than three years.

148. The grounds of appeal as argued in this Court have been more than sufficiently answered by the judgments of the other members of the Court, I, therefore, also agree that the appeal should be dismissed.

151. The order of the Court, therefore, is that the appeal be dismissed.

[1] Fox & Freiberg Sentencing: State and Federal Law in Victoria, 2nd Ed, 1999, at 2.324-2.325.

[3] (1993) 67 A.Crim.R. 486.

[4] [1998] 4 V.R. 235 at p.241.

[5] [1999] VSCA 208, at [20].

[6] [1999] VSCA 223, at [14].

[7] [2002] VSCA 52, at [14].

[8] Section 5(4) of the Sentencing Act 1991.

[11] [2002] VSCA 52 at [14].

[12] [2001] VSCA 199.

[13] Unreported, Court of Appeal, 19 February 1996, at 11.

[14] [1985] VicRp 3; [1985] V.R. 41 at 44-45.

[15] [1997] 2 V.R. 1 at 3.