Wan v The Queen [2018] VSCA 217

CRIMINAL LAW - Application for leave to appeal against sentence - One charge of manslaughter - Sentenced to eleven years' imprisonment with a non-parole period of seven years and six months - Whether sentence manifestly excessive - Applicant played active role in organised fight - Application for leave refused.

1 The applicant, Shengliang Wan, stood trial on a charge of murder. The jury acquitted him of that charge, but convicted him of the alternative charge of manslaughter, to which he had, in any event, pleaded guilty. He was sentenced to a term of 11 years' imprisonment with a non-parole period of seven years and six months. He now seeks leave to appeal against that sentence.

2 The applicant relies upon one proposed ground of appeal:

Ground 1 - In all of the circumstances the sentence imposed is manifestly excessive, particularly having regard to the applicant's plea of guilty, his remorse and conduct immediately after the event, and his isolation in custody.

The circumstances surrounding the commission of the offence

3 The incident which gave rise to the charge took place shortly before 10.30pm on Friday, 15 April 2016, in La Trobe Place, Melbourne. In the days leading up to that incident, a fight had been organised between the deceased, Longxiang Hu, and another young man, Wuyang Ji. The fight related to their respective interest in a young woman.

4 Shortly after the fight began, the applicant intervened. At one point, he threw the deceased to the ground, and stomped on his head some five times. As a result, the deceased sustained critical head injuries. He was kept on life support for several days, but died on 23 April 2016.

5 The prosecution did not contend that by repeatedly stomping on the deceased's head, the applicant intended to kill him. Rather, it alleged that he intended to inflict really serious injury upon him. As the sentencing judge observed, the jury by their verdict, were not satisfied that the applicant had that state of mind when he inflicted the blows that caused the deceased's death. Nonetheless, it was plain that the applicant's actions were dangerous, in the sense that a reasonable person in his position would have appreciated that he was exposing the deceased to an appreciable risk of serious injury.

6 At the time of the incident, the applicant was aged 23. He was a student at the Royal Melbourne Institute of Technology. The deceased was several years younger, having been born in October 1996. He had come to Australia in 2014 in order to continue secondary school studies. At the time of his death, he was undertaking studies for VCE.

7 The relationship between the applicant and Wuyang Ji was said to have been close, and the applicant was described as having been protective of him. It was for that reason that the applicant became involved in the dispute between Wuyang Ji and the deceased. The fight that was organised between the two of them involved a number of friends of both parties who were invited to attend. The applicant was one of those who played a central role in organising the fight. A substantial part of the fight, including the critical concluding stages, was captured on CCTV footage. However, some of the events which took place immediately before the last few moments, were not recorded.

8 Prior to the fatal kicks being delivered, the applicant had become involved in the fight and had delivered some punches in the direction of the deceased. He had withdrawn for a short time, and then again intervened. It seems that Wuyang Ji dislocated his own shoulder during the fight, and withdrew from the fray. It was then that the applicant again became actively involved.

9 As previously indicated, the applicant threw the deceased forcefully to the ground, and immediately stomped on the back of his head while his forehead was facing the ground. He delivered at least four further kicks to the left side of the deceased's face. The last two were delivered while the applicant had both hands on the wall of the building that was adjacent to the alleyway, effectively bracing himself. In delivering those last two stomps, the applicant raised his knee above hip height.

10 After inflicting these blows, the applicant walked away for a short distance. He then returned and attempted to kick the deceased again. It was not clear whether the attempted kick made contact with him.

11 A number of onlookers assisted the deceased to sit on a nearby step, though by that stage he was clearly unwell and distressed. The applicant remained in the laneway for the next hour or so. While there, he approached the deceased several times. On some of those occasions, he apologised to him. He said, 'I bashed you too hard, which I shouldn't have'. He demonstrated concern for the deceased's condition and offered to pay for any medical expenses incurred by him.

12 The deceased indicated that he did not want to go to hospital, although his condition was seriously deteriorating. At about midnight, he was taken by friends to a nearby hotel. By that stage, his condition had deteriorated badly.

13 The applicant attended at the hotel room at about 5.00am the following morning. He tried to persuade the deceased to go to hospital without delay. However, another person present refused to permit that to occur. Eventually, the applicant was able to persuade those in attendance to take the deceased to hospital where, as I have said, he remained for some days before dying. He was on life support almost from the moment that he was admitted.

14 In assessing the gravity of the offending, the sentencing judge accepted that the applicant's actions on the night were not premeditated, other than his having taken part in organising for the fight to take place. On the other hand, the applicant had become involved in the fight from a very early stage, and plainly wanted to ensure that it took place. In that sense, he instigated the violence.

15 The applicant's conduct in repeatedly stomping on the deceased's head was described by his Honour as 'vicious and cowardly'. The stomps were delivered when the deceased was defenceless, vulnerable and at the applicant's mercy. Each stomp was forceful, and the last three involved a substantial amount of force.

16 There was evidence that the applicant was intoxicated at the time, or at least adversely affected by alcohol. However, his Honour was not prepared to make that finding, to the requisite degree, and did not, accordingly, treat it as an aggravating factor.

17 The sentencing judge observed that there were no mitigating circumstances attaching to the applicant's conduct. His actions were particularly dangerous, and for that reason, the case was said to fall 'within the higher end of the range of offences of manslaughter'.

18 There were some mitigating factors associated with the applicant's conduct after the incident, but his Honour was not persuaded that there was any genuine remorse evidenced by that conduct. There had been an offer to plead guilty to manslaughter from an early stage. By that time, there was some genuine remorse. His Honour gave the applicant credit for such remorse.

19 As to matters personal to the applicant, he was academically gifted, and had distinguished himself in various other ways. He had been of good character and had no previous convictions. He was described as being a loyal friend who displayed a real concern for other people. It was clear that at the completion of his sentence he would be deported back to China. As it had always been his intention to return to that country, the prospect of deportation carried less weight than it might otherwise have done.

20 His Honour accepted that the applicant's time in prison had been difficult, and that his facility with English was limited. In addition, he took into account the applicant's youth.

21 On an application for leave to appeal against sentence under s 278 of the Criminal Procedure Act 2009, this Court may refuse leave if it considers that there is no reasonable prospect that on an appeal, a less severe sentence than that first imposed would be fixed. As the sole ground upon which the applicant relies contends that the sentence imposed below was manifestly excessive, it would have to be shown that a term of 11 years' imprisonment with a non-parole period of seven years and six months, was wholly outside the range reasonably available to the sentencing judge. If that ground were made good, the Court of Appeal would reduce the head sentence, and the non-parole period significantly, and would not merely 'tinker' with the orders made below.

22 Notwithstanding Mr Mandy's eloquent submissions in support of the applicant, I do not think that there is any reasonable prospect that the Court of Appeal would come to the conclusion that this sentence was manifestly excessive. Rather, I regard the term of 11 years with a non-parole period of seven years and six months' as a mainstream sentence, neither particularly severe, nor particularly lenient, having regard to the gravity of this offence. It is, in broad terms, the type of sentence that I would have expected to be imposed for this very serious crime, even making due allowance for such mitigating factors as were present.

23 In these circumstances, I would refuse leave to appeal against sentence.