Ah-Kau v The Queen
[2018] VSCA 296
•14 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0095
| JOSEPH AH-KAU | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2018 0007
| KELEPI OFAMOONI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 October 2018 |
| DATE OF JUDGMENT: | 14 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 296 |
| JUDGMENT APPEALED FROM: | DPP v Ofamooni; DPP v Ah-Kau (Unreported, County Court of Victoria, Judge Lyon, 19 December 2017) |
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CRIMINAL LAW – Application for leave to appeal – Appeal – Sentence – Aggravated burglary – Theft – Kidnapping – Intentionally causing injury – Prohibited possession of firearm – Whether sentence manifestly excessive – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Theft – Kidnapping – Intentionally causing injury – Armed robbery – Whether orders for cumulation offend totality principle – Whether sentencing judge erred in finding insufficient disparity between total effective sentence imposed on each co-offender – Whether kidnapping sentence and total effective sentence manifestly excessive – Appeal on totality and manifest excess dismissed – Appeal on parity allowed – Appellant resentenced – New total effective sentence of 10 years’ imprisonment – New non-parole period of 6 years and 9 months – R v Verdins (2007) 16 VR 269.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant For the Appellant | Mr J O’Connor Mr P J Smallwood | Haines & Polites Papa Hughes Lawyers |
| For the Crown | Ms E H Ruddle | Mr J Cain, Solicitor for Public Prosecutions |
McLEISH JA
T FORREST JA:
On 1 December 2017, Kelepi Ofamooni and Joseph Ah-Kau pleaded guilty in the County Court to various serious criminal charges. On 19 December 2017, they were sentenced as follows:
Kelepi OFAMOONI
Charge on Indictment G11791199 Offence Maximum Sentence Cumulation 1. Aggravated Burglary contrary to s 77(1)(a) of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment 3 years 2. Theft contrary to s 74(1) of the Crimes Act 1958 Level 5 imprisonment (10 years) 18 months’ imprisonment 3 months 3. Kidnapping contrary to s 63A of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment Base sentence 4. Armed Robbery contrary to s 75A of the Crimes Act 1958 Level 2 imprisonment (25 years) 4 years’ imprisonment 15 months 5.
Intentionally Causing Injury contrary to s 18 of the Crimes Act 1958 Level 5 imprisonment (10 years) 3 years’ imprisonment 6 months Total Effective Sentence (‘TES’): 12 years’ imprisonment Non-Parole Period: 7 years 6 months Pre-sentence Detention Declared: 536 days 6AAA Statement: 14 years 6 months with a non-parole period of 11 years Other orders:
- Licence suspension on charge 4 for a period of 9 months commencing 19 December 2017
- Forfeiture Order
Joseph AH-KAU
Charge on Indictment G11791235 Offence Maximum Sentence Cumulation 1. Aggravated Burglary contrary to s 77(1)(a) of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment 3 years 2. Theft contrary to s 74(1) of the Crimes Act 1958 Level 5 imprisonment (10 years) 18 months’ imprisonment 3 months 3. Kidnapping contrary to s 63A of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment Base sentence 4. Prohibited person possess firearm contrary to s 5(1) of the Firearms Act 1996 Level 2 imprisonment (7 years) 42 months’ imprisonment 2 years 5.
Intentionally Causing Injury contrary to s 18 of the Crimes Act 1958 Level 5 imprisonment (10 years) 2 years’ imprisonment 3 months Total Effective Sentence (‘TES’): 12 years and 6 months’ imprisonment Non-Parole Period: 9 years Pre-sentence Detention Declared: 536 days 6AAA Statement: 15 years’ imprisonment with a non-parole period of 12 years
On 13 April 2018, Ofamooni was granted leave to appeal on the following grounds:
(i)the orders for cumulation on the charges of kidnapping, aggravated burglary, theft and intentionally causing injury offend the totality principle;
(ii)the learned sentencing judge erred in that he found insufficient disparity between the total effective sentence imposed on the applicant and that imposed on his co-accused;
(iii)the sentence on charge 3 (kidnapping) and the total effective sentence are manifestly excessive.
Ah-Kau has filed a notice of application for leave to appeal against sentence together with a written case outlining a single proposed ground of appeal:
(i) that the sentence imposed is manifestly excessive.
This application for leave has not been determined. We shall consider it and the appeal as one hearing, along with Ofamooni’s appeal. For clarity, we shall refer to both the applicant and the appellant by their family names.
The offending
On 30 June 2016, Ah-Kau was 36 years old and Ofamooni was 27. At that time, Danella Tamei lived at 5 Norma Street, Melton with her boyfriend, Jacob Large. At approximately 5:30 pm on that day, Samuel Large was at this address housesitting for his absent brother, Jacob. Ah-Kau and Ofamooni drove to the Melton address and alighted from their vehicle. Ofamooni was armed with a shotgun at this stage. The purpose of their visit to this address was to collect a drug debt purportedly owed by Ms Tamei.
CCTV showed Ofamooni knocking on the front door. He then, whilst armed with the shotgun, kicked in the front door. Ah-Kau stood by his side. Both men entered the house (count 1: aggravated burglary (both offenders)). Samuel Large tried to escape but was taken prisoner. Ofamooni levelled the shotgun at him and demanded cash and drugs. Both men stole a number of personal items from him (count 2: theft (both offenders)).
Samuel Large was then forcibly taken from the Melton address and driven to another residential property in Kings Park (charge 3: kidnapping (both offenders)). He was held there against his will for some hours. A ransom of $10,000 was demanded from his family. He was blindfolded and driven to another unknown location where he was held captive by both men for some further hours.
At about 6:00 am on 1 July 2016, both offenders then returned to the Melton address. Samuel Large remained at the unknown address. The two offenders commenced placing items from the Melton address into their vehicle. A passer-by, Adam Bell, approached the men. He noticed Ah-Kau possessed a firearm (charge 4: prohibited person possessing a firearm (Ah-Kau only)). Ofamooni approached Mr Bell and said, ‘Who the fuck are you?’. He then pushed Mr Bell into the garage. Whilst armed, he said, ‘Where is your wallet?’ and, ‘Empty your fucking pockets’. Mr Bell handed over his car keys. Ofamooni took those keys, entered Mr Bell’s vehicle and drove off (charge 4: armed robbery (Ofamooni only)). Ah-Kau drove off in his own vehicle.
Ofamooni and Ah-Kau then returned to Samuel Large and conveyed him, still blindfolded and against his will, back to the Kings Park address. There, both offenders questioned Samuel Large about where his money was and whether there were guns at his address. At this stage, Ofamooni had armed himself with a stolen black rubber mallet. Over a period of hours, Ofamooni repeatedly struck Samuel Large with the mallet to the arms, legs, chest and hands. He also punched him. Ultimately, Samuel Large could neither stand nor walk, such was the beating. Ah-Kau, whilst not directly participating in administering the beating, pleaded guilty on the basis that he was aware that in the course of the kidnapping, it was probable that injury would be inflicted (charge 5: intentionally causing injury (both offenders)). No further particulars of injury were available to his Honour, although photographs were tendered on the plea. We conclude the injuries involved lacerations and widespread soft tissue injury.
At 11:44 am on 1 July 2016, Ms Tamei received a telephone call from Samuel Large. She agreed to meet the two men at McDonalds Derrimut to pay a ransom of $5,000. Shortly after that, Ofamooni and Ah-Kau cut off Samuel Large’s blood-soaked clothing; he was given fresh clothes that had been taken from the Melton address. An unknown woman bandaged his wounds and fed him.
Ms Tamei, Jacob Large and another man attended the McDonalds store at the appointed time. Ofamooni met them there, arriving in a stolen vehicle. A ransom was negotiated. It is unknown whether an agreement was struck.
By 3:25 pm, a telephone intercept was in place. At 5:30 pm, Ofamooni called Jacob Large. In short, he told Jacob Large that he wanted $5,000, a revolver and a shotgun within one hour. Ofamooni said there would be trouble if he (Jacob Large) did not comply. At this stage of the call, Samuel Large seemed to be crying out in pain. Follow-up calls were made by Ofamooni. In a call at 6:45 pm, Ofamooni told Jacob Large that if he was not at ‘Duc’s house’ within an hour, Samuel Large would be shot in the leg. Several further similar calls were made up until 9:56 pm.
Just before 10:00 pm, police investigators were positioned outside Samuel Large’s parents’ home address in Melton. A car drove past. Ofamooni was driving. Ah-Kau and Samuel Large were in the car. It parked a short distance up the road.
Investigators approached the vehicle. Ofamooni first reversed quickly and then accelerated from the scene. Shortly after, Ofamooni called Jacob Large. His voicemail recorded Ofamooni saying, ‘Jakey? Hello, Jake, you fucking dog.’ Ofamooni once more resorted to the rubber mallet. As he drove, he hit Samuel Large with it. He drove to the Kings Park property. He told Samuel Large he would be ‘shot tonight’.
At 11:10 pm, police finally caught up with the co-offenders and their hostage. When interviewed, Ofamooni initially made evasive and relatively self-serving partial admissions. Ultimately, his admissions became more extensive. Ah-Kau refused to speak to investigators.
All told, Samuel Large was held against his will for about 30 hours.
The plea hearing
No prior history was alleged against Ofamooni. Ah-Kau has a criminal history dating back to 1998. He has many convictions for dishonesty, possession and trafficking in drugs. In February 2011, he was convicted and sentenced to three years’ imprisonment with a minimum of two years to serve for three counts of being a prohibited person in possession of an unregistered firearm. He served his full three years and parole was denied. In short compass, the basis for this offending was said to be the sale of three firearms — two semi-automatic assault rifles and a double-barrel shotgun — on three separate occasions to an undercover police operative. Ah-Kau did not have prior convictions for any violent offences.
Counsel for Ofamooni emphasised her client’s relative youth, the impact of his mother’s death and his descent into ice addiction. She urged his Honour to give utilitarian credit for his plea and to accept that having accepted the task of collecting a drug related debt, the offending evolved in a haphazard way. Counsel tendered and relied on a psychologist’s report which, amongst other opinions, expressed the observation that Ofamooni functioned at an extraordinarily low intellectual level with a full scale IQ of just 52. Counsel disavowed relevance on any particular aspect of the ‘Verdins considerations’[1] but submitted that his immaturity and low intellect gave context to his drug use and the offending. Counsel referred to solid family support offered to Ofamooni and tendered a number of character references. Counsel submitted that his Honour ought conclude Ofamooni’s prospects for rehabilitation were good. In the time that Ofamooni had spent in custody, he had returned consistently clear urine screens.
[1]See R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
Counsel for Ah-Kau submitted that his client ought receive a utilitarian benefit for his pleas of guilty and that he would experience an extra burden whilst imprisoned due to the expectation of deportation (to New Zealand) upon completion of his sentence. He further submitted that Ah-Kau did not have violent prior convictions, remorse could be inferred from his pleas, the kidnapping was unplanned and unsophisticated and the Court ought have regard to current sentencing practices for kidnapping and aggravated burglaries as evidenced by the Sentence Advisory Council papers and the Sentencing Snapshot.
The prosecution submitted that the case involved protracted and serious offending and ought attract a significant term of imprisonment for both offenders. Insofar as Ofamooni was concerned, the prosecution submitted general deterrence had a greater role to play than specific deterrence, and conceded that he had good prospects for rehabilitation. The psychological report of Alison Mynard provided ‘insight into the offending’ and indicated that Ofamooni’s low IQ was a relevant factor. Notwithstanding this, the prosecutor submitted, Ofamooni was the person who inflicted most of the injuries. He was entitled to some form of discount for his admissions made in the record of interview.
The prosecution submitted that specific deterrence was a significant sentencing factor in Ah-Kau’s case and stood to be considered with general deterrence, denunciation and just punishment. It was an aggravating feature that Ah-Kau committed these offences within days of receiving a 12 months community correction order (‘CCO’). The prosecutor accepted that Ah-Kau was entitled to a sentencing benefit for the utility of his plea.
Judge’s sentence
In comprehensive reasons for sentence, his Honour set out a summary of the relevant offending, characterised the offending as at the ‘highest level of criminal culpability’ and determined that each offender must ‘share equal responsibility for the actions of the other during the course of the charges of aggravated burglary, theft, kidnapping and intentionally causing injury’. His Honour identified the point of difference between the two offenders, being that while Ofamooni alone was charged with armed robbery, Ah-Kau alone was charged with being a prohibited person in possession of a firearm. His Honour reviewed the circumstances of Ah-Kau’s 2011 prior convictions for the same offences.[2]
[2]See paragraph 16 of these reasons.
His Honour set out the background of both men. Ofamooni at 29 years old, the youngest of nine children, is of Tongan descent. He was not academic and left school in Year 8, after which he maintained relatively consistent employment. His mother, with whom he was very close, died in 2015, at about which time his relationship with his female partner ended. Also at about this time, he commenced using methylamphetamine. By mid-2016, there was little stability in his life and his offending arose out of his relationship with his drug dealer. His Honour was highly critical of his ‘willingness to repeatedly use [a] shotgun to terrify [his] victims, [his] constant sustained assaults on Samuel Large, [his] unwillingness to release him and [his] statement of intention to shoot him ….’. His Honour considered Ofamooni’s late plea as of utilitarian benefit.
Ah-Kau was 36 years old at the time of sentence. He came to Australia from New Zealand in his early teens. He left school after completing Year 10 and worked consistently until early 2015, when his use of methylamphetamine increased. He had been using this substance since his early twenties. He is married with five children. His Honour reviewed his relatively lengthy criminal history. He noted that just nine days before the instant offending, Ah-Kau had been placed on a CCO for drug offences, driving offences, dealing in the proceeds of crime and ‘remarkably for contravening a CCO for failing to answer bail’. His Honour said:
[Y]ou have shown little willingness to take the opportunities offered to you to remain in the community and to rehabilitate … I consider your prospects for rehabilitation to be very poor.
His Honour accepted that Ah-Kau will be deported to New Zealand when released from custody. He noted that his wife and children are Australian citizens who have never lived in New Zealand. His Honour accepted, consistent with the principles set out in Guden v The Queen,[3] that the burden of imprisonment would weigh more heavily on Ah-Kau in these circumstances. The likelihood of losing the opportunity of settling permanently in Australia was also considered in Ah-Kau’s favour. His Honour took into account Ah-Kau’s late plea as of utilitarian benefit.
[3][2010] VSCA 196 [15]–[23].
His Honour considered that in both cases, the mitigatory factors must take a ‘backseat’ role to objective principles of general deterrence, denunciation, punishment, protection of the community, and in Ah-Kau’s case, specific deterrence. After referring to the sentencing principles enunciated in Hogarth,[4] Meyers,[5] Hi[6] and Dalgliesh,[7] his Honour concluded:
The sentence I arrive at must take account of objective sentencing principles and factors personal to each of you to the extent that they may mitigate your sentences. Whilst I may have some regard to current sentencing practices … those practices cannot constrain the sentence which I consider appropriate in this case. I must arrive at a sentence appropriate in the circumstances of this case and appropriate to each of you in your own circumstances.
[4]Hogarth v The Queen [2012] VSCA 302.
[5]DPP v Meyers [2014] VSCA 314.
[6]Hi v The Queen [2017] VSCA 315.
[7]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37.
As to the question of parity, his Honour said:
Whilst you must both share equal responsibility for much of the offending, ultimately it has been necessary to make some adjustment to the sentences I have imposed on you. Of course, you are not facing the same charges as each other. Further, there are considerable differences between your personal circumstances. In your case, Mr Ofamooni, I consider the differences I have made in the sentences between the two of you reflect these factors.
These appeals
Ah-Kau’s counsel argued the sole ground of manifest excess. The sentences on charges 1 (aggravated burglary) and 3 (kidnapping) were said to be manifestly excessive, as was the cumulation of three years imposed on the aggravated burglary charge. Although it was not part of his written case, counsel was given leave to submit that the order for cumulation on count 4 (prohibited person possess firearm (two years’ cumulation)) was also manifestly excessive. Counsel contended that notwithstanding the serious nature of the overall offending, given his client’s more passive role in the haphazard offending, the total effective sentence was simply too high, as were those sentences imposed on counts 1, 3 and 4. Ah-Kau’s criminal history was essentially non-violent, if relatively extensive, and his Honour’s emphasis on specific deterrence was misplaced. The aggravated burglary, kidnapping and injury charges were part of the one continuing transaction and near total concurrency was justified. Further, the sentences imposed did not reflect the utilitarian benefit of Ah-Kau’s guilty plea or his prospects of being deported once he completed his sentence. The real vice, however, was in the orders for cumulation which resulted in a crushing sentence.
Ofamooni’s counsel argued that his low IQ was an important sentencing factor that was relevant to all grounds of appeal. His Honour correctly accepted that Ofamooni was intellectually impaired, and notwithstanding that counsel on the plea eschewed reliance on any of the Verdins considerations, Ofamooni’s IQ of 52 was clearly relevant to general deterrence and demanded to be taken into account. As to ground 1, the offences of aggravated burglary, kidnapping, theft and intentionally causing injury were part of the one transaction, all committed with the purpose of recovering a drug debt and ought to have attached a good deal less cumulation than was ordered. The only truly separate event was the offence of armed robbery. Ground 3 (manifest excess) was said to be interlinked with ground 1. Counsel submitted that current sentencing practices for the offence of kidnapping reveal substantially lower sentences than the seven years’ imprisonment imposed on this occasion. The total effective sentence failed to reflect adequately, or at all, the factors in mitigation, which included his prior good character, his plea of guilty, his admissions and co-operation with investigators, his vulnerability in the prison environment and his solid prospects for rehabilitation. Counsel submitted again that Ofamooni’s intellectual impairment meant that he was not a suitable vehicle for general deterrence and that the sentence imposed failed to reflect this. As to ground 2 (parity), it was submitted that the subjective circumstances of the two offenders were sufficiently different that a much wider gap should have prevailed between their respective total effective sentences than the six months ultimately imposed.
Counsel for the respondent contended this was very serious offending by both offenders. His Honour took each offender’s personal circumstances into account and made the relevant distinctions. In particular, his Honour did consider Ofamooni’s low intellectual functioning at paragraphs 35 and 36 of his reasons for sentence. Given Ofamooni’s prominent and more active role in the offending, the fact that he received a lower total effective sentence must mean that his low intellectual functioning (as well as his lack of prior convictions and brighter prospects for rehabilitation) were afforded proper weight in the sentencing mix. The disparity between the two minimum terms imposed also reflected their different circumstances. As to the submissions made on cumulation by both counsel, the respondent contended that this very serious offending involved the commission of separate but related offending over 30 hours. Significant cumulation was entirely appropriate. Further, his Honour considered and took into account Ah-Kau’s prospective deportation in line with established principle. Ah-Kau’s criminal history, whilst not involving crimes of violence, was extensive, relevant, and displayed an indifference to court orders. It impacted directly on aspects of specific deterrence and protection of the community. These stern sentences were demanded by the nature of the offending and were neither crushing, nor offensive to the principles of totality or parity.
Analysis
Ah-Kau: Manifest excess
It is well established that this is a difficult ground to sustain. The burden rests with the applicant/appellant to establish that the sentence imposed was so high as to be wholly outside the range of sentences available to the judge.[8] The argument can be directed at individual sentences, orders for cumulation, the non-parole period, the total effective sentence or any combination of these.[9] It is also well established that arguments of manifest excess do not allow for much argument or elaboration.[10] The sentence is either manifestly excessive or it is not.
[8]Kumar v The Queen [2013] VSCA 191 [24] (Maxwell ACJ); Clarksonv The Queen (2011) 32 VR 361, 384 [89]; Hards v The Queen [2013] VSCA 119 [4] (Maxwell ACJ).
[9]Save that an argument cannot be directed at the total effective sentence alone (see R v Boucher [1995] 1 VR 110, 116). In practical terms, it is difficult to see how such an argument could be mounted without challenge being made to at least one of individual sentences or cumulation.
[10]R v King [2007] VSCA 38 [16] (Redlich JA); R v ALP [2002] VSCA 210 [117] (Eames JA).
As we have observed, counsel for Ah-Kau contended that the individual sentences on charge 1 (aggravated burglary) and charge 3 (kidnapping) were manifestly excessive, the cumulations ordered on both charges 3 and 5 (prohibited person possessing a firearm) were manifestly excessive and the total effective sentence was itself manifestly excessive.
First impressions are that this is certainly a very stern sentence; but equally, first impressions of the criminal conduct are that it is truly egregious. His Honour characterised both offenders’ conduct as at the highest level of criminal culpability and, with respect, we agree with this characterisation. The offenders participated in, amongst other things, kicking in the door of a private residence whilst armed with a shotgun, taking a hostage, carrying him away, blindfolding him, beating him with a mallet, demanding ransom and threatening him over a period of 30 hours. Superimposed on this, Ah-Kau possessed a firearm as a prohibited person — a serious offence in itself and an offence for which he had already been convicted and imprisoned some years earlier.
It is correct that this offending occurred during the one transaction, as counsel contended. However, it was a 30 hour transaction, during which several discrete and serious offences were committed. In our view, the gravity and distinct character of the individual offending called for some significant cumulation. We are also satisfied that his Honour took stock of all relevant mitigating features, including the post-sentence prospect of deportation, and accorded them appropriate weight in the sentencing mix.
We consider the individual sentences imposed are each well within the appropriate range for this offending. The total effective sentence is a product of the various orders for cumulation. It is undoubtedly stern, as is the minimum term to be served, but justifiably so in our view.
Ofamooni: Cumulation (ground 1)
Manifest excess (ground 3)
It is convenient to consider these two grounds together. The centrepiece of Ofamooni’s contentions on this appeal was that his lack of prior convictions, cooperation with the investigators, pleas of guilty, prospects for rehabilitation, relative youth, vulnerability in the prison environment and (in particular) his intellectual impairment, should all have conspired to moderate his individual sentences, cumulation, and thus the total effective sentence and the minimum non-parole period of imprisonment. Ofamooni’s contention is that no such moderation is apparent and, notwithstanding the ‘highest level of criminal culpability’, the sentence imposed is wholly outside the range available to his Honour.
We are unable to agree with this submission. Viewed by itself, the sentence is undoubtedly stern, but as we have observed, the criminality displayed by both offenders is egregious. It is clear to us also that Ofamooni was significantly the more active participant in the joint offending:
· Ofamooni and Ah-Kau went together to the front door of Jacob Large’s house.
· Ofamooni was armed with a shotgun.
· Ofamooni kicked the door in.
· Ofamooni levelled the shotgun at Samuel Large.
· Both men demanded cash and drugs.
· Both men stole cash, and a watch and chain worn by Samuel Large.
· Both men forced Samuel Large to accompany them to the Kings Park address.
· Both men forced Samuel Large to contact his family to obtain ransom money, blindfolded him and drove him to an unknown location.
· Both men arrived (without Samuel Large) at Jacob Large’s house. Ah-Kau, a prohibited person, was observed to be carrying a firearm.
· Ofamooni saw a man standing in the driveway, asked, ‘Who the fuck are you?’, pushed him into the garage, whilst armed, demanded his car keys and stole his car.
· Both men returned to where Samuel Large was being held. They further interrogated him about the whereabouts of money and guns.
· Ofamooni repeatedly punched Samuel Large. He repeatedly struck him with a rubber mallet.
· Ofamooni negotiated the payment of a ransom with Jacob Large and others.
· Ofamooni continued to negotiate the ransom throughout the afternoon and evening of 1 July 2016. He told Jacob Large, ‘There will be blood’ if he didn’t comply.
· Towards the end of the 30 hour abduction, Ofamooni beat Samuel Large again with the mallet and told him would be shot that night.
It is beyond argument that Ofamooni’s full scale IQ of 52 amounts to a substantial intellectual impairment. Counsel on the plea specifically disavowed any reliance on the Verdins principles, despite principle 3 requiring a consideration of whether general deterrence should be moderated or eliminated as a sentencing consideration consequent upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending, or at the date of sentence, or both.
Ofamooni’s counsel on the plea[11] explained her disavowal of the Verdins principles. She said:
[Ofamooni was] drug affected at the time [of the offending] and motivated by drugs, so I don’t rely on Verdins, but I do ask your Honour to take into account his immaturity and low intellectual functioning … in a general sense to give context to his drug use and to this offending. … [The psychologist, Ms Mynard] also says … that he would have been more vulnerable than the average prisoner because of his intellectual functioning … managing relationships and conflicts in gaol would be very difficult for him. … For those reasons, your Honour, it’s difficult to mount an argument that he’s vulnerable in jail in the Verdins sense.
[11]Different counsel appeared for both offenders on this appeal/application.
In our view, counsel could well have mounted an argument that Ofamooni’s intellectual impairment at the date of sentence rendered him a relatively unsuitable vehicle for general deterrence and that this aspect of the sentencing mix ought be moderated. Further, despite counsel’s concern about contending that Ofamooni was vulnerable ‘in the Verdins sense’, ultimately, counsel did contend that later in her plea.
It is well established that in sentencing appeals, this Court is reviewing the exercise of a discretionary judgment, not conducting a rehearing of the plea in mitigation:
It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[12]
[12]Romero v The Queen [2011] VSCA 45 [11] (Redlich JA).
Counsel for Ofamooni on this appeal contended that we ought overlook the disavowal of the Verdins principles below, and take a fresh look at whether Ofamooni was, in fact, a suitable vehicle for general deterrence given his substantial intellectual impairment. If it were sought to be argued as a ground of specific error, we would not be prepared to take this fresh approach. The Verdins principles were specifically eschewed and the intellectual impairment was argued to be relevant in other ways. As we have indicated, we do accept, however, that later in the plea, notwithstanding her earlier submissions, counsel did ask his Honour to take into account Ofamooni’s vulnerability as a prisoner as set out by Ms Mynard. To this extent, we accept that his Honour was invited to consider whether Verdins principle number 5 had application.
On an argument of manifest excess, however, we are prepared to assume that the relevance of Ofamooni’s intellectual impairment should be taken into account even though it was not strongly relied upon at the plea hearing. Taking that course acknowledges that it was open to his Honour, despite the submissions of Ofamooni’s counsel, to treat that matter as bearing on general deterrence.
In sentencing Ofamooni, his Honour remarked:
Mr Ofamooni, your actions must be met by general deterrence, denunciation, just punishment and protection of the community. The factors in mitigation and your lack of prior convictions can only play a small part in determining the appropriate sentence for your offending.
Given the gravity of the offending, we can discern no error in this approach. Whilst it was open to his Honour to moderate the impact of general deterrence, even if such moderation were undertaken, we are unable to conclude that any of Ofamooni’s individual sentences, the orders for cumulation or the minimum term set for parole eligibility are wholly outside the range of available penalties — the material to which we were referred regarding current sentencing practices for kidnapping and aggravated burglary does not suggest this. We also observe that while the applicant’s intellectual impairment could have been viewed by his Honour as impacting upon the weight given to general deterrence, it could have no moderating impact on the aspect of community protection. His Honour was entitled to and did view this as a significant factor in this sentencing exercise. Grounds 1 and 3 are rejected.
Ofamooni: Parity (ground 2)
The principle of parity of sentence is based upon the notion of equal justice.[13] Equal justice does not call for the same sentence to be imposed regardless of distinctions between co-offenders’ personal circumstances and criminality.[14] Where distinctions are drawn on sentence between co-offenders, those distinctions ought relate to factual distinctions between the co-offenders’ circumstances.[15] When an unjustifiable discrepancy arises between co-offenders’ sentences, an appellant is said to have a ‘justifiable sense of grievance’, determined as an objective matter.[16]
[13]Lowe v The Queen (1984) 154 CLR 606, 610–611 (Mason J) (‘Lowe’).
[14]Postiglione v The Queen (1997) 189 CLR 295, 303 (Dawson and Gaudron JJ) (‘Postiglione’).
[15]Lowe (1984) 154 CLR 606, 610–611 (Mason J); Postiglione (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
[16]Postiglione (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Abdou v The Queen [2015] VSCA 359 [62]; R v Wolfe [2008] VSCA 284 [9] (Maxwell P).
In this appeal, Ofamooni contends that there is an unjustifiable disparity between the sentences imposed on the offences common to both offenders such as to give him a justifiable sense of grievance. It is convenient to repeat the relevant sentences under consideration. On charge 1 on both indictments (aggravated burglary), both offenders received seven years’ imprisonment, three years of which was ordered to be cumulative on the base sentence and all other sentences. On charge 2 (theft) both offenders received 18 months’ imprisonment, three months of which was ordered to be cumulative on the base sentence and all other sentences. On charge 3 (kidnapping) both offenders received seven years’ imprisonment. This was the base sentence. On charge 5 (intentionally causing injury) Ofamooni received three years’ imprisonment and Ah-Kau received two years’ imprisonment. In Ofamooni’s case, six months of this sentence was ordered to be cumulative on the base sentence and all other sentences. In Ah-Kau’s case, three months of this sentence was ordered to be cumulative on the base sentence and all other sentences.
Thus, on the jointly committed offending,[17] the head sentences imposed are identical save for charge 5, where Ofamooni received a 50 per cent longer sentence than Ah-Kau with a corresponding longer period of cumulation. All told, on the jointly committed offences, Ofamooni received a total effective sentence of 10 years and nine months. Ah-Kau received a total effective sentence of 10 years and six months.
[17]That is leaving to one side the independently committed offences of armed robbery (Ofamooni) and prohibited person possessing a firearm (Ah-Kau).
The single biggest variation between the two sentences imposed is in the non-parole period. His Honour ordered Ofamooni to serve seven years and six months of his 12 years total effective sentence before parole eligibility; Ah-Kau was ordered to serve nine years of his 12 years six months total effective sentence before parole eligibility.
After some hesitation, we have concluded that ground 2 has been made out. We agree with his Honour’s conclusion that the co-offenders ‘must each share equal responsibility for the actions of the other during the course of the charges of aggravated burglary, theft, kidnapping and intentionally causing injury’. Whilst it is true that Ofamooni was more proactive than Ah-Kau, both men were in each other’s company at most material times during this very violent anti-social offending. Both men, with threats and violence, worked towards the common goal of extracting ransom money, drugs and firearms from their victim and his family. Moreover, the greater role of Ofamooni was most pronounced in the case of the injury charge. In relation to the other offending, the two men were very much equals.
If the proposition that co-offenders should share equal responsibility for each other’s actions is correct, then we consider that there is little, if any, reflection of Ofamooni’s different circumstances in the individual sentences imposed or in the orders for cumulation. Ah-Kau had a lengthy criminal history, an apparent indifference to court orders, was correctly characterised as requiring specific deterrence and his prospects for rehabilitation were considered to be very poor. He was also seven years older than Ofamooni. His Honour took into account in Ah-Kau’s favour the likelihood that he would be deported upon his release. Ofamooni, at 29 years old, was still relatively young. He had no prior convictions, an intellectual impairment that made him vulnerable in a custodial setting and his prospects for rehabilitation were assessed to be ‘good’. We consider that Ofamooni’s personal circumstances were significantly more favourable than those of Ah-Kau.
There is no scientifically precise answer to the quantification of disparities between offenders. Ultimately, it is an evaluation based on impression. Our impression is that the sentencing distinctions drawn by his Honour in his conscientious and thorough reasons are not adequately reflected in the sentences imposed on Ofamooni in charges 1, 2, 3 and 5, nor are they adequately reflected in the orders for cumulation. We consider that the substantial similarity in the sentences gives rise to a justifiable sense of grievance.
Ground 2 is made out and we allow the appeal. We propose to resentence Ofamooni as follows:
Charge on Indictment G11791199 Offence Maximum Sentence Cumulation 1. Aggravated Burglary contrary to s 77(1)(a) of the Crimes Act 1958 Level 2 imprisonment (25 years) 6 years’ imprisonment 2 years 2. Theft contrary to s 74(1) of the Crimes Act 1958 Level 5 imprisonment (10 years) 15 months’ imprisonment 3 months 3. Kidnapping contrary to s 63A of the Crimes Act 1958 Level 2 imprisonment (25 years) 6 years’ imprisonment Base sentence 4. Armed Robbery contrary to s 75A of the Crimes Act 1958 Level 2 imprisonment (25 years) 4 years’ imprisonment 15 months 5.
Intentionally Causing Injury contrary to s 18 of the Crimes Act 1958 Level 5 imprisonment (10 years) 2 years 6 months’ imprisonment 6 months Total Effective Sentence (‘TES’): 10 years’ imprisonment Non-Parole Period: 6 years 9 months Pre-sentence Detention Declared: 866 days 6AAA Statement: 12 years 6 months with a non-parole period of 9 years
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