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[2019] VSCA 226
General information, not legal advice.
Court of Appeal (Vic)
2019-10-14
Mr J, Ashley JA, Weinberg JA
Original judgment source is linked above.
DPP v Tan [2018] VCC 1819 (Judge Pullen)
CRIMINAL LAW - Sentence - Recklessly causing serious injury - Domestic violence - Total effective sentence of five years and six months' imprisonment - Non-parole period of three years and six months - Whether sentence manifestly excessive - Physical injury in lower range of seriousness - Sentencing practices - Circumstances of cases relied upon by the respondent not comparable - Leave to appeal granted - Appeal allowed - Appellant resentenced to four years and three months' imprisonment with non-parole period of two years and nine months'.
1 Hong Chew Tan pleaded guilty to a charge of recklessly causing serious injury.[1] The incident giving rise to this charge occurred on 11 February 2018. On 7 November 2018, Tan was sentenced by a judge in the County Court to be imprisoned for a period of five years and six months. The judge fixed a non-parole period of three years and six months, and declared a period of 269 days as pre-sentence detention.
2 Tan now seeks leave to appeal against sentence on the single ground that:
the sentence imposed was maiifestly [sic] excessive given the classification by the Judge by as [sic] being at the lower and mid-range, closer to the lower end but definitely not at the lowest end.
3 In our opinion, the applicant should have leave to appeal and the appeal should be allowed. For the reasons which follow, we consider that the applicant should be sentenced to four years and three months' imprisonment, and that a non-parole period of two years and nine months should be fixed.
4 The applicant was born on 26 August 1979, in Georgetown, Penang, Malaysia. At the time of offending, he was aged 38.
5 The victim, Min Ye Wong, then his de facto partner, was then aged about 28, having been born in 1990.
6 At the time of the offending, the applicant and Ms Wong had been living together for some 18 months in an apartment in Melbourne together with the owner of the apartment.
7 At the relevant time, the applicant was employed in two jobs - as a grocery shop assistant and as a forklift driver.
8 On 10 February 2018, the applicant sent Ms Wong a number of text messages asking for money. It appears that he wished to buy presents for Chinese lunar year celebrations.
9 Ms Wong responded asking why he needed the money. She did not agree to give him money.
10 The applicant became angry and threatened to freeze Ms Wong's finances.
11 The applicant returned home at about midnight on 10 February. Ms Wong had gone to bed. After bathing, the applicant went into the bedroom and began yelling at Ms Wong. He tore up photographs of the two of them and told her that he would cancel her visa. Then he pushed her, causing her to fall to the floor and injure her knee. Ms Wong grabbed him by the collar of his T-shirt. He pushed her onto the bed and placed one hand around her throat, as if to strangle her. With one hand on her throat, he lifted his other hand and threatened to hit her. He then released his hold and said, 'I want you to die', after which he left the room.
12 The applicant went to the kitchen and obtained a knife about 30 centimetres in length. He returned to the bedroom with the knife, removed its protective cover, grabbed Ms Wong by the throat and pointed the knife at her face. He pressed the blade against the skin of her neck, causing a superficial laceration. By this time, the owner of the apartment, seeing what was occurring, said that he was going to make a phone call. The owner walked away from the bedroom, intending to call the police.
13 Ms Wong pushed the applicant to stop him cutting her neck. They wrestled, and Ms Wong felt him slash her on her left arm with the knife. That was the last step in this violent incident.
14 Ms Wong's left arm was bleeding. The owner of the apartment drove her to hospital.
15 Medical examination showed that Ms Wong had bruising to the right side of her neck, red marks on the back of her neck, a superficial laceration on the left side of her neck, a small superficial laceration to the right lower quadrant of her abdomen, blunt force trauma to her left knee, and a laceration to her left forearm approximately five centimetres in length. It is notable that the last-mentioned injury was a laceration, not a stab wound. This is consistent with the injury having been sustained in a struggle between the applicant and the victim. The last mentioned injury required surgery, which Ms Wong underwent on 12 February 2018. It was anticipated that this injury would result in scarring. There was no evidence that any of the other injuries either required treatment or had lasting physical effect.
16 As to what was the serious injury alleged by the charge, the judge in her sentencing remarks, said this:
Whilst the laceration to the left arm was, of itself, a serious injury, this charge before me represented the laceration to the left arm in combination with the other injuries sustained, specifically, the bruising to [Ms] Wong's neck, the linear injury to her neck, abrasion to her abdomen and trauma to the knee.[2]
17 The applicant was apprehended on the morning of 11 February 2018. He admitted that there had been an argument about money and that Ms Wong had suffered an injury from a knife. He denied that he had been the aggressor.
18 Notwithstanding the applicant's exculpatory account, he pleaded guilty to the charge prior to a committal hearing fixed for 23 July 2018. The judge accepted this plea as being 'indicative of some remorse'.[3]
19 The judge described the circumstances of the offending. Her Honour paid some attention to earlier incidents of violence by the applicant when arguing with Ms Wong. The judge noted that this was relied upon by the prosecution 'as other "misconduct" evidence'.[4]
20 The judge drew attention to the applicant's failure to take Ms Wong to hospital after inflicting injury upon her. Such was the case, although we note that the applicant attended the emergency department at the hospital on two occasions in the early hours of the morning on which the incident took place.
21 In addition to the judge accepting that the applicant's plea of guilty was indicative of some remorse, the judge noted the utilitarian value of the plea.
22 With respect to prior offending, the judge noted that the applicant had appeared in a Magistrates' Court in April 2017 on two charges of unlawful assault. These had related to an assault upon the parents of the applicant's first wife. Without conviction, the applicant had been fined an aggregate of $750. That was not an assault involving the use of a weapon. Again, it had been the outcome of a dispute about money.
23 The judge described this prior offending as 'concerning', the applicant having
displayed difficulty with relationship issues and difficulty managing [his] anger in such situations as here involving [Ms] Wong and money.
24 The judge was provided with, and her Honour referred to, a summary of the applicant's personal history and background. The applicant had finished schooling in Malaysia in about 1988 and had begun working with his family in a vegetable import/export business. A year later, he had been sent to Taiwan to do a diploma course. He had stayed there for two years, returning to Malaysia in 2001. He had then lived at home and worked in his father's business.
25 In 2005, the applicant had come to Australia on a holiday. He met a woman who had emigrated from China to Australia. He was sponsored as a migrant. Two years later, he married the lady and lived with her family. His family gave him $300,000 to buy a house. There, he lived with his wife. There were two children of that relationship, a son and daughter, both now living with their mother.
26 In 2012, he and his wife had divorced. He gave his wife the family home, where she continued to live with the children.
27 In 2013, the applicant suffered an industrial accident which caused injury to his back. Later, he received $300,000 in compensation. He had been on benefits in 2014 and 2015, but was working in two jobs at the time of the instant offending.
28 The applicant had met Ms Wong at a party. She was a student at the time. The applicant had sponsored Ms Wong to be a permanent resident in Australia as his partner.
29 In mid-2016, he and Ms Wong had moved into a friend's apartment. They purchased a grocery business (in 2017, they sold it) and the applicant paid a deposit on an apartment in a property being developed in the Melbourne CBD. The balance of the applicant's moneys was invested in a joint bank account.
30 The day before the incident, as we have already recounted, there had been a dispute about the applicant having access to the joint account.
31 The judge stated her awareness that the applicant's plea of guilty was to a charge of recklessly - not intentionally - causing serious injury.
32 The judge noted the submission of counsel for the applicant that 'the serious injury sustained in circumstances in which it occurred fell at the lower end of seriousness albeit conceding not at the lowest end'. The judge's opinion was that the applicant's offending was 'between the lower end and mid-range, closer to the lower end, but definitely not at the lowest end'.[5]
33 The judge then addressed Ms Wong's suffering, which the victim had described in a victim impact statement. The judge described the statement as 'eloquent'[6] and recapitulated a good deal of its content.
34 The judge referred to reports which were attached to the victim impact statement. Ms Wong's general practitioner confirmed, in reports dated 10 August 2018, that his patient was presenting with weakness and pain in her left forearm and left hand. She was seeing a hand physiotherapist. She was seeing a psychologist and psychiatrist, and was being treated with antidepressant medication. She had been unable to work since being injured, and the doctor opined would continue to be unable to work for some time.
35 A report from a clinical psychologist, dated 13 August 2018, was also before the judge. The psychologist concluded that Ms Wong's symptoms were consistent with a diagnosis of PTSD which would require long-term treatment.
36 Having dealt expansively with Ms Wong's account of the physical and mental sequelae of the incident, the judge stated that she was conscious that she must not allow the effects upon a victim to swamp the sentencing process.
37 As to prospect of rehabilitation, the judge said this:
38 As to prospect of the applicant being deported in the event that he was sentenced to a term of imprisonment of 12 months or more, the judge accepted that it was a factor which may bear on the impact of a sentence upon an offender such as the applicant. She said this:
I accept the burden of imprisonment may be greater for a prisoner such as you, who knows upon your release you are likely to be deported.[8]
39 Having referred to submissions advanced for both the applicant and the Crown, in the course of the latter of which the prosecutor had submitted, by reference to a number of cases, that there was an increase in current sentencing practices for offending of this kind in a domestic setting, the judge observed that:
40 The judge rejected a submission for the applicant that a term of imprisonment of less than 12 months, together with a community correction order, would be appropriate. Having referred to the need to take into account both general and specific deterrence, the judge imposed the sentence now complained of.
41 In written submissions, counsel for the applicant accepted that this was a reckless infliction of serious injury, the offending having had physical, emotional and financial consequences for the victim. He did not gainsay that the applicant had not assisted the victim after inflicting injury, that he had initially denied the offending, and that he had given police a false account. Again, the offending having occurred in a domestic context, it was rightly conceded that general deterrence was a prominent sentencing consideration. It had not been in issue below that a term of immediate imprisonment had to be imposed.
42 Against that, counsel submitted, the judge had to take into account the nature of the serious injury, which was relatively minor compared with other serious injuries the infliction of which attracts lengthy terms of imprisonment.
43 Again, it was submitted, the applicant faced the prospect of deportation, which would add to the burden of imprisonment, the moreso because his children reside in Melbourne.
44 There was, counsel submitted, only one prior court appearance, where a relatively small fine had been imposed without conviction.
45 Reliance was also placed on the applicant's plea of guilty at an early stage, and also that the violence was not protracted nor, on the evidence, premeditated.
46 Applicant's counsel referred to two cases upon which the prosecutor had relied below - Marrah v The Queen[10] and Nolan v The Queen,[11] in which lengthy individual sentences had been imposed for offences of recklessly causing serious injury. It had been submitted below that the dispositions in those matters were indicative of current sentencing practices for this offence when committed in domestic violence situations. But, counsel submitted, there could be no useful comparison between this case and those of Marrah and Nolan.
47 In Marrah, the offending was committed in breach of a family violence intervention order. There, the offending had involved a prolonged assault, and had occurred in the context of the offender committing sexual violence against the victim. Moreover, counsel observed in oral submissions, that offender had a prior conviction for manslaughter. On appeal, a sentence of eight years' imprisonment for the particular offence had been reduced to six years.
48 Counsel referred to Marrah at [21] where Redlich and Tate JJA described the features commonly attending instances of the most serious kind for this offence. He submitted that the circumstances of this case were 'far removed' from the circumstances there described.
49 In Nolan, the 23 year-old offender threw the contents of a kettle of boiling water over his domestic partner as she hid in an attempt to protect herself after the offender had punched her, kicked her and hit her over the head with a broom. Having thrown the boiling water over her, the offender had whipped the victim with a kettle cord, a phone charger and the cord of a blow up mattress, and bit her on the back, both forearms and left calf. All this had been done in the presence of the couple's two children. The victim had attempted to flee, but the offender had blocked her exit, heated up a pot of water and thrown it over the victim's back. He had poured the contents of a salt container over her head and rubbed salt into cuts on her scalp. He had threatened to kill her. He was charged with recklessly causing serious injury, false imprisonment and making a threat to kill. On the first charge he was sentenced to six years' imprisonment. The total effective sentence imposed was eight years' imprisonment. He was refused leave to appeal.
50 Further in oral submissions, counsel referred to Smith v The Queen[12] and Pato v The Queen,[13] cases referred to by the sentencing judge and relied upon by the Crown in this Court. There, sentences of three years' imprisonment had been imposed for offences committed in a domestic setting. The judge had agreed with the prosecutor that sentencing practices had increased with the passage of years. But the offenders in those cases, counsel submitted, had many prior convictions.
51 Counsel referred also to DPP v McKay[14] where this Court increased a sentence for the instant offence, committed in a domestic setting, to four years and six months' imprisonment. But there, counsel submitted, the offending had been serious, and the respondent had a prior conviction for assault with a knife.
52 Counsel's final submission was that the sentence which the judge imposed was more than one third of the maximum penalty of 15 years' imprisonment for the particular offence. In all the circumstances, it was submitted, the sentence failed to reflect the classification of this offending as being between the lower and mid-range of instances of this offending.
53 It was submitted in writing for the Crown that, simply having regard to statistical information of sentencing patterns for the instant offence, it was 'difficult to resist a contention that leave should be granted', the ground of manifest excess being reasonably arguable.
54 It was, however, submitted that the sentence fell within the permissible range, 'albeit at the high end'.
55 In support of this submission, it was contended that all relevant considerations had been carefully addressed in the sentencing process. The factual circumstances of the offending were, as described by the judge, 'most serious and disturbing'.[15] The applicant had made no offer to assist the victim. The injury to the left arm had required surgery and there would be scarring. The offending was coloured by other incidents of violence committed upon the victim, showing that the charged act was not isolated in nature, thereby precluding leniency in sentencing.[16] Counsel further referred to the victim having suffered considerably as a result of the offending.
56 Responding to the applicant's contention that the sentence imposed did not correlate with the offence as categorised by the judge, it was submitted for the Crown that whilst 'at first blush, such an argument appears to be persuasive', there were other considerations in play which militated against such a conclusion. There was the other misconduct evidence referable to Ms Wong, the prior incident involving domestic violence, the judge's guarded finding as to remorse, the guarded finding as to prospects of rehabilitation in the absence of counselling, and the impact of the attack upon the victim despite the physical injury being in the lower range of seriousness.
57 Counsel supported the prosecutor's submissions on sentencing purposes for domestic violence offences. The judge had rightly given considerable weight to the sentencing purposes of deterrence and protection of the community. The judge's approach, it was submitted, accorded with recent authority of this Court.[17]
58 Finally, in written submissions, it was accepted by the Crown, most fairly, that whilst 'reference to raw statistics is of limited utility', the most recent sentencing snapshot, for the period 2012/13 to 2016/17 showed: (1) a sentencing range for this offence of 14 days to six years' imprisonment, (2) a median sentence of two years and six months' imprisonment, and (3) that only 18 persons during that period (out of 258 offenders) had received a sentence of five years' imprisonment or longer.
59 In oral submissions, counsel for the Crown laid emphasis, with respect to the gravity of the offending, upon the applicant having gone from the scene of the confrontation to obtain the knife. This, counsel submitted, was an aggravating circumstance.
60 Then counsel went in his submissions from the intentional obtaining of the knife to what was said to be 'the intentional use of the knife', and to what was described as the infliction of a 'deep and deliberate wound'.
61 Counsel finally submitted that little could be said for the applicant on the plea save for his guilty plea and the risk of deportation. This was a relatively serious example of a relatively serious offence.
62 The circumstances of this offending, of its impact upon the victim, and of the applicant's personal circumstances are not in doubt. They were fully set out in the judge's sentencing remarks, as was the approach that should be taken where this offence is committed in a domestic setting. Rightly, it was not contended for the applicant that the judge had overlooked any relevant sentencing consideration. Rather, the applicant submitted that, when all the circumstances of the offending, the offender and the victim were considered, the sentence imposed was entirely outside the limits of the sound exercise of the sentencing discretion. In that event, the heavy burden which rests upon an offender of demonstrating that a sentence is manifestly excessive was satisfied.
63 We consider, as we have foreshadowed, that this submission was made good. So to conclude does not gainsay the need for sentences for this offence, committed in a domestic setting, to reflect the need for general deterrence, specific deterrence (which was relevant in this instance) and protection of the community as pertinent sentencing considerations. It is also the fact that sentences for this offence, committed in a domestic setting, have increased in recent years. We accept too that the fact that the applicant broke off the confrontation to obtain the knife made his offending more serious.
64 On the other hand, we do not accept the Crown's submission that the applicant intentionally used the knife to inflict injury, and that he inflicted a deep and deliberate wound. The judge made no such finding. Her Honour simply accepted the prosecutor's submission that the applicant consciously decided to get the weapon, unsheathe it and use it as he did.[18] In the sense that his actions were conscious and voluntary, no doubt her Honour was correct. Moreover, the fact that the wound was inflicted in the course of a struggle, and the description of the wound, tells against the Crown's submission in this Court. More likely it is that the wound was the reckless infliction of a wound carrying with it the probability of serious injury. This may be contrasted with the situation when the applicant pressed the knife against Ms Wong's neck, causing a superficial laceration.
65 But, as against the matters telling in support of the sentence which was imposed, despite the applicant's too ready resort to violence over an apparently minor money matter, despite injuries which his violence caused, and despite also the continuing distress occasioned to Ms Wong, there were the ameliorating circumstances upon which applicant's counsel relied in the plea hearing, and which were reiterated in this Court. It was correct also for the applicant to submit that the circumstances in each of Marrah[19] and Nolan[20] were far removed from the circumstances of this matter; and yet the sentence here imposed was not far short of the sentence imposed for this offence in those cases. So also, the submissions for the applicant with respect to Smith, Pato and McKay[21] were in point. Again, it is the fact that, despite the limited utility of raw sentencing statistics, the sentence imposed in this case was not far short of twice the median length of imprisonment for the offence over the 2016/17 year, and that over the five-year period ending 2017 only a very small number of those imprisoned for this particular offence were subject to a sentence exceeding five years. Underlining the severity of the sentence imposed here, by no means did all persons sentenced for this offence in the five year period receive a custodial disposition.
66 Having regard to not only the circumstances of this offending, this offender and this victim, but also to sentencing trends of the offence when committed in a domestic setting, whilst we are satisfied that the sentence imposed was manifestly excessive, we also consider that a sentence in lieu should not settle at or about the 2017 median custodial sentence. It is in all those circumstances that, the application for leave to appeal being granted and the appeal allowed, we will impose the sentence which we foreshadowed at [3] above.
67 We state, for the purposes of s 6AAA of the Sentencing Act 1991 (Vic), that had the applicant gone to trial and been convicted, we would have imposed a sentence of six years' imprisonment, and would have fixed a non-parole period of four years' imprisonment.
[1] Contrary to s 17, Crimes Act 1958. The maximum penalty for the offence is 15 years' imprisonment.
[2] DPP v Hong Chew Tan [2018] VCC 1819, [39] ('Sentencing Remarks').
[10] [2014] VSCA 119 ('Marrah').
[11] [2017] VSCA 240 ('Nolan').
[12] [2010] VSCA 192 ('Smith').
[13] [2011] VSCA 223 ('Pato').
[14] [2018] VSCA 292 ('McKay').
[16] The Crown referred to the observations of Bray CJ in R v Reiner (1974) 8 SASR 102, 115 in this connection.
[17] Forbes (a pseudonym) v R [2018] VSCA 341 was cited in this connection.
[21] We have not overlooked McKay at [24], where this Court referred to three recent cases where sentences of four years imprisonment (in two instances) and of six years imprisonment had been upheld. The last-mentioned case, Al Wahame v The Queen [2018] VSCA 4, involved an offender with a history of repeated violent offending whose one blow assault upon a victim unknown to him caused the victim permanent brain damage. The circumstances there were markedly different to those in the present case.
Tan
The Queen [2019] VSCA 226
(1974) 8 SASR 102