R v Truong[1999] QCA 21

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 438 of 1998

Brisbane

THE QUEEN

v.

TONY DAT TRUONG

(Applicant) Appellant

de Jersey CJ

Thomas JA

Mackenzie J

Judgment delivered 19 February, 1999

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL GRANTED, APPEAL ALLOWED. SENTENCE ON GRIEVOUS BODILY HARM COUNT SET ASIDE AND REPLACED WITH 18 MONTHS IMPRISONMENT SUSPENDED AFTER THREE MONTHS WITH AN OPERATIONAL PERIOD OF THREE YEARS. SENTENCE ON AGGRAVATED ASSAULT COUNT SET ASIDE AND REPLACED WITH ONE YEAR IMPRISONMENT, SUSPENDED AFTER THREE MONTHS WITH AN OPERATIONAL PERIOD OF THREE YEARS. SENTENCE ON WILFUL DESTRUCTION COUNT AFFIRMED, BUT ORDERED TO BE SUSPENDED AFTER THREE MONTHS WITH AN OPERATIONAL PERIOD OF THREE YEARS.

CATCHWORDS: CRIMINAL LAW - Sentence - applicable sentencing law - difference between sentencing principles at time of commission of offence and at time of sentencing - s 9 Penalties and Sentences Act 1992 (Qld) - appropriate sentence - parity - degree of involvement of accused.

s 9 Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)

Counsel:  Mr PJ Callaghan for the applicant/appellant.

Mr AW Moynihan for the respondent.

Solicitors:  Legal Aid Queensland for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 4 February 1999

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/02/1999

1. The applicant pleaded guilty to offences of grievous bodily harm, assault occasioning bodily harm whilst armed and in company, and wilful destruction. He was sentenced to three years imprisonment on the first mentioned matter and to two years imprisonment on the others, with all sentences suspended after serving four months imprisonment, with an operational period of three years.
2. The applicant was 17 years of age at the time of the offences and had no prior criminal history.
3. The complainants were one Huynh and his son-in-law Doan. They had developed a hostile attitude towards one Nam Nguyen (one of the co-offenders) with whose family the applicant had a friendly association. The hostility apparently arose because Doan's employment had been terminated and he blamed Nam Nguyen who had been his supervisor. He commenced a campaign of harassment against Nam Nguyen and was joined in this by his father-in-law Huynh, who made a number of aggressive telephone calls to Nam Nguyen's mother. This campaign assumed serious proportions when on 20 July 1996 (the date of the offences) Huynh and Doan assembled four car loads of men and went searching for Nam Nguyen. Nam Nguyen and his associates (including the applicant) then gathered at his mother's home. Whilst there, Huynh made a further phone call to the residence and spoke to Nam Nguyen. The conversation was heated and Huynh challenged Nam Nguyen to come around to his house. Nam Nguyen and his associates including the applicant responded to the challenge. What followed eventually amounted to what is sometimes called a "home invasion" in the course of which Huynh was struck on the head with a sword and a hammer and Doan was struck on the wrist by a hammer. A glass table inside the house and the windows of a vehicle parked outside the house were broken.
4. The injury comprising the grievous bodily harm was not at the more serious end of the range for that offence, consisting of a loss of sense of smell. The medical report accords that CT scans did not show evidence of any obvious pathology, but that it was known that the loss of sense of smell can occur after what appears to be quite trivial head injuries, and it was accepted that it was likely that Huynh had a permanent loss of sense of smell.
5. The applicant's involvement in the relevant actions of the group was limited. He was aware that at least one in his group had a stick and went with them to the complainant's residence, and was aware that a fight might ensue. He did not at any stage enter the house and took no part in the physical assaults that ensued. However he remained outside, and the basis of his involvement as a party to the grievous bodily harm would seem to be his concession that he would probably have called out and warned the others if police had arrived. Also he used a brick to smash the windows of Doan's car. This later action is very reprehensible, but it is the offences of grievous bodily harm and actual bodily harm within the house to which attention needs to be drawn, as they are the primary basis of the three year term to which the applicant was sentenced.
6. It would seem that three or four of the group (not including the applicant) broke into the house armed with a knife, hammer, sword and garden fork and that in the ensuing action Huynh and Doan were struck as mentioned above.
7. The only co-offender convicted of grievous bodily harm was Nam Nguyen, the others being convicted of lesser offences. Nam Nguyen was sentenced on the basis that he was the ring leader who had broken the door and taken the group inside. The Crown could not prove which member of the group personally inflicted the injuries, but Nam Nguyen was obviously directly involved in the armed invasion and was with the group who inflicted the harm while the applicant was not. Nam Nguyen was 21 at the time of the offence and had no criminal history. He was sentenced to three and a half years imprisonment, suspended after six months with an operational period of four years.
8. The question arises whether sufficient allowance was made for the limited role played by the applicant and whether sufficient distinction was drawn in the sentences imposed on these two offenders. The authorities cited in support of the sentence relate to persons directly involved in violence rather than the persons who play lesser parts as accessories. Although such persons are criminally responsible, it is their actual involvement that should be scrutinised in sentencing.[1] It is a mistake to assume that the punishment of an accessory must be the same or even similar to that of the party who performs the direct criminal acts.
9. Before considering further the appropriate level of sentence, and the question whether imprisonment should have been imposed at all on this youthful first offender, it is necessary to deal with a submission concerning the sentencing law that applied to this particular sentencing exercise.

Applicable sentencing law

10. The question arises whether the applicant should have been sentenced according to the principles set out in s 9 of the Penalties and Sentences Act 1992 (Qld) as it stood at the time of commission of the offence (20 July 1996) or as it stood at the time when he was sentenced (22 November 1998).
11. When the offence was committed s 9(4) of the Penalties and Sentences Act 1992 provided:

"(4) A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having-

1. (a)
   considered all other available sentences; and

2. (b)
   taken into account the desirability of not imprisoning a first offender;

is satisfied that no other sentence is appropriate in all circumstances of the case".

12. Section 9 of the Act which is titled "Sentencing Guidelines" is a legislative attempt to summarise the principles upon which judicial officers are to act when sentencing offenders. It does not purport to spell out every relevant consideration that might arise, and indeed it would seem unwise if not impossible to attempt to do so. It is noted that it has always contained the requirement that "a court must have regard to...any other relevant circumstance".[2] The Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld) however effected changes to these legislative guidelines that had first been introduced in 1992. In particular s 9(4) (quoted above) and the principle that a sentence of imprisonment should only be imposed as a last resort were removed so far as offences involving the use of violence against another person are concerned. Further provisions were inserted specifying the primary matters to which the court must have regard when sentencing offenders in such cases. These factors include the risk of physical harm to any members of the community if a custodial sentence is not imposed, and the need to protect any members of the community from that risk. The amending Act also introduced a regime under which prisoners sentenced to a period of 10 or more years for a serious violent offence must serve a minimum of 80% of that period before being eligible for release on parole.[3] The Act also deprived courts of the capacity to recommend parole for any serious violent offender at any time less than 80% of the full term, and abolished prison remissions for serious violent offenders.
13. It is fair to say that the regime introduced by the 1997 Act, which came into operation on 1 July 1997, relevantly imposed stricter sentencing guidelines, and in the case of violent offenders sentenced to 10 years or more a mandatory restriction of parole eligibility. In the case of violent offenders sentenced to between five and 10 years imprisonment, the courts were given a discretionary power to make the offender subject to the stricter regime contained in Part 9A.
14. The stricter provisions concerning parole and remission are not relevant in the present matter, as the applicant's sentence falls short of bringing them into operation. It may be noted however that the transitional provision[4] affects some recommendations made and sentences imposed before the commencement of Part 9A of the Act.
15. In the court below the applicant's counsel submitted that his Honour was obliged to sentence "in accordance with current practice". Neither his Honour nor the Crown prosecutor demurred to that proposition. On appeal however counsel for the applicant submitted that the proposition was erroneous, that the applicant was entitled to be sentenced under the law as it stood at the time when he committed the offence, and that accordingly his Honour must have sentenced him on incorrect principles.
16. In support of this submission reference was made to s 11(2) of the Criminal Code (Qld) and to R v Inkerman[5] and R v Mason & Saunders.[6] Section 11(2) of the Code provides:

"If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law." (Our emphasis).

17. There is however also substantial authority, including High Court authority, that tends to support the opposite conclusion. On behalf of the Crown Mr Moynihan submitted that the factors prescribed in s 9 of the Penalties and Sentences Act set out the way in which a judge is to approach the facts and the manner to proceed when passing sentence. It is, he submits, a procedural provision. That, we think, is plainly correct. By way of example, statutory amendments altering existing law with respect to corroboration have been authoritatively held to be merely procedural.[7] In Rodway's case[8] the court[9] held that the provisions "operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation" and that "both amendments were procedural in character". Their Honours did not consider that the section of the Acts Interpretation Act equivalent to our s 20(1)[10] supported the applicant's case, expressing the view that subsection 1(c) "applies only to preserve acquired or accrued rights and, as we have endeavoured to explain, the applicant had acquired no right to a particular mode of procedure at his trial, at all events before his trial had commenced". It may generally be taken that a procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective, that is to say that its application may relate to past events.[11]
18. It was further observed in Rodway:

"A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish L.J. in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years."[12]

19. Section 11(2) of the Code, and s 20C of the Acts Interpretation Act are concerned with penalty or extent of punishment. Section 20C(3) provides that "if an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences". It is in our view arguable whether the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 increased any actual penalties, although it plainly subjected offenders to a regime under which a greater part of the sentences are to be served. However this matter was determined in R v Mason & Saunders (above) (with the members of the Court acknowledging some doubt) upon a broad consideration of what amounts to an increase of punishment. In the result it was held that Part 9A of the Penalties and Sentences Act did not have the effect of excluding the operation of s 11(2) of the Code and s 20C of the Acts Interpretation Act.[13] In short the application of Part 9A was regarded as punishing the offender to a greater extent than was authorised by the former law, and as increasing the penalties for the offence within the meaning of s 20C of the Acts Interpretation Act. Accordingly the offender was entitled to the protection of s 11(2) of the Code.
20. It was submitted that this approach is inconsistent with the approach of the Supreme Court of the Northern Territory and of the High Court in Siganto v The Queen.[14] In that case the offender was sentenced under legislation which abolished remissions and required the non-parole period to be not less than 70% of the period of imprisonment in relation to the relevant offence. The offender argued that the changes brought by the legislation did not apply to him because he had committed the offence prior to that date and that he should have been sentenced under the law as it stood at the time of the offence. The Supreme Court of the Northern Territory, consistent with Rodway, considered that no "right or privilege" was acquired by the offender when he committed the offence such as he would have obtained had he been sentenced before the Act came into effect. A provision in the Northern Territory Criminal Code,[15] similar to that in s 11(2) of our Code, was considered not to affect the position.
21. In the course of its judgment the High Court considered the propriety of acting under the new sentencing regime which was acknowledged to bear more harshly upon serious sexual offenders than the previous regime. The court observed:

"The Court of Criminal Appeal held, on the true construction of the legislation, and upon the basis of common law principles as to the operation of statutes, that those new provisions applied to the sentencing of the appellant. Special leave to appeal against that part of the decision of the Court of Criminal Appeal was refused. Parliament intended the new sentencing regime to apply to persons in the position of the appellant."[16]

22. The court then referred to a submission that fairness required that the appellant not be punished more severely than he would have been had he been sentenced before the commencement of the Act. The court continued:

"This argument should be rejected. The Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act. Giving effect to that intention produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced. This is not relevantly inequality before the law. It is a consequence of a change in the law. The circumstances which, in a given case, meant that an offender came under the new regime could vary greatly. The Legislative Assembly could have enacted transitional provisions to cover such cases, but it did not do so, and this failure to do so must (in the light of the transitional provisions that were made) be taken to be deliberate".[17]

23. To similar effect is the decision of the New South Wales Court of Criminal Appeal in R v Maclay.[18] With respect to the new sentencing regime introduced in that state by the Sentencing Act 1989 the court observed that the primary task of sentencing judges under that Act was to apply the new sentencing system according to the terms of the statute, and that it was not their primary function to do their best to replicate what they would have done under the old system.[19] That decision, like that of Siganto, was based upon a statute with clear transitional provisions requiring retrospective operation to offences committed before the operation of the Act.
24. There is however a distinction between the transitional legislation applicable in Siganto and Maclay and that which applies here. When the Penalties and Sentences Act was introduced in 1992 it contained the general transitional provision "this Act applies to any sentence imposed after the commencement of this section, irrespective of when the offence was committed". An identical section appears in the 1995 Sentencing Act (Northern Territory), and as the High Court observed, there can be no doubt that such a provision would subject offenders such as Siganto to the provisions of the new Act. However the provisions in issue here are those of a 1997 amendment to the Penalties and Sentences Act which provided a new sentencing regime and only quite limited transitional provisions in respect of it. This was adverted to in R v Mason & Saunders (above). The original transitional provision (s 204) remained in being but the court considered it to be "a transitional provision in the original Act, its purpose being to ensure that any sentence imposed after 27 November 1992 would be subject to the terms of the Act as originally enacted notwithstanding that the offence in respect of which it was imposed was committed before that date. It could not have intended to apply any future amendments to all sentences imposed after that date". The actual transitional provision respecting the new regime for violent offenders appear as s 206, and this provision merely gives retrospective effect to recommendations made under s 157(7)(b) and to s 161C(2)(b) of the amended Act.
25. In these circumstances we would hold that s 9 of the Penalties and Sentences Act, both before and after the 1997 amendment is a purely procedural provision and that nothing in s 11 of the Code or in s 20 or s 20C of the Acts Interpretation Act entitle the applicant to be sentenced according to the earlier version of s 9. However we would not at this stage be prepared to depart from the view taken by this court in R v Mason & Saunders (above) in relation to the non-application of Part 9A to offences committed before 1 July 1997.
26. It follows that on the assumption that his Honour acted according to the amended version of s 9, no error was committed.

Appropriate sentence

27. Relevant factors in the present case include the applicant's youth, his lack of previous convictions, the delay between offence and sentence during which he observed stringent reporting conditions, and his early plea of guilty. Further, even though prison is no longer in a case of this kind to be regarded as a "last resort", good reason still needs to be shown to induce a court to send a young man to prison and naturally all other reasonable sentencing options also need to be considered. Even so, the circumstances of this matter were such as to make a prison sentence almost inevitable. It has been observed that an unprovoked assault which results in permanent injury will ordinarily attract a prison sentence unless there are compelling personal circumstances associated with the offender dictating a different course.[20] There is relevant evidence of provocative conduct in the present matter in that the complainants were themselves guilty of grave misbehaviour contributing to the vendetta, but it is necessary to discourage behaviour of this kind, and the final reaction of the group supported by the applicant was utterly unacceptable.
28. It was submitted that a lack of parity can be seen between the sentence imposed upon Nan Lam, who was one of those who went inside the house and the sentence imposed upon the applicant. Lam pleaded guilty to assault with circumstances of aggravation, but not to causing grievous bodily harm. Accordingly his admission of criminal responsibility was less than that of the applicant. He was sentenced to 18 months imprisonment fully suspended. He was therefore not dealt with for the same principal offence as the present applicant.
29. We do not think that any question of lack of parity can properly be considered in relation to the grievous bodily harm count, but observe that there is a plain inconsistency between Nan Lam's sentence on the assault count and the two year concurrent sentence with partial suspension imposed on the applicant on his assault count. That however does not assist the applicant in reduction of the operative sentence imposed on the more serious count, although it does require some adjustment of the concurrent sentence.
30. We are persuaded however that insufficient distinction was drawn between the sentence imposed upon Nam Nguyen and the applicant, the former receiving only a slightly more severe sentence although he was much more heavily involved. The applicant's involvement in the offence of grievous bodily harm was his presence outside the house so as to increase the show of force and warn if necessary. That is of course serious misconduct, but his activity was considerably less reprehensible than that of Nam Nguyen. When one bears in mind the moderate level of harm caused and the factor that the event was an over-reaction by his group in response to quite serious aggression from the complainant and others, the head sentence appears to be manifestly excessive. We would set aside the sentence on the grievous bodily harm count and replace it with one of 18 months imprisonment suspended after three months with an operational period of three years. We would also set aside the two year sentence imposed on the aggravated assault count and replace it with one year, likewise suspended after three months with a similar operational period. We would not interfere with the two years imposed on the wilful destruction count but would order that it be suspended after three months, again with an operational period of three years.
31. The application for leave to appeal should be granted, the appeal should be allowed and the sentences below replaced with those which have been stated.