Director of Public Prosecutions v Alagaelua

[2016] VCC 1926

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01466

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANETONE ALAGAELUA
ULETE PULEGA
JOSEPH SEFO

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 December 2016
CASE MAY BE CITED AS:	DPP v Alagaelua & Ors
MEDIUM NEUTRAL CITATION:	[2016] VCC 1926

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For Accused Mr.Alagaelua	Ms C. De Francesco
For Accused Mr.Pulega	Mr L. Dybrosa
For Accused Mr.Sefo	Ms K. Ballard

HIS HONOUR:

1Anetone Alagaelua, Ulete Pulega and Joseph Sefo, you each pleaded guilty to six charges, being:  intentionally causing serious injury; two charges of causing injury intentionally; and three charges of robbery on 15 May 2016 at Melton South.

2The circumstances of your offending are these, as contained in a summary of the prosecution case, which was exhibited and will be retained on the court's file.

3On Sunday 15 May 2016 at approximately 1.30 am, Mr.Alagaelua, Mr.Pulega and Mr.Sefo, you assaulted and robbed Callum Volfe in an alleyway near Pure nightclub in Melton.  A short time later at approximately 2.05 am, the three of you assaulted and robbed William McKinley and Frederick McKinley on a footpath in Melton.

4On 14 May 2016 at approximately 8 pm, Mr.Alagaelua, Mr.Pulega and Mr.Sefo, you attended a party for your rugby team in Brookfield.  Also with you was Mr.Sefo's younger brother, Sala Sefo.  You, Mr.Alagaelua, drove to the event, and the group brought a carton of premixed alcohol beverages.  You all spent several hours there, drinking and eating.  Mr.Alagaelua you only had a few drinks and were intending to drive.  Mr.Pulega, you were drinking on the way there, and continued drinking at the party.  You had more than ten premixed cans and some shots, and felt drunk.   Mr.Sefo you drank several drinks mixed with spirits and also felt drunk, though not to a significant degree. 

5At some time after midnight on Sunday 15 May 2016, you all left the party in Mr.Alagaelua's car, intending to go home.  On the way home, you felt bored and discussed ‘doing something stupid’.  You decided to drive to Pure nightclub with the intention of hitting someone and taking their phone.  Mr.Alagaelua parked the vehicle in a car park not far from the nightclub, and at 1.22 am, you walked by the front door of the nightclub while Sala Sefo remained at the car. 

6For about 15 minutes, you all stood about 100 metres from the entrance, and you eventually walked backwards towards the club and down the nearby alleyway leading to High Street.  The alleyway itself is about 50 metres long, dimly lit by streetlights at either end.

7That evening, Mr Volfe had finished work late and attended Pure nightclub in Melton with friends.  He arrived at 11.30 pm and spent several hours there.  Sometime after 1.30 am, Volfe left the nightclub to attend an ATM with a friend, Wayne Veller.  The nearest ATM was on High Street and directly accessed via the alleyway near the premises.

8As the pair walked down the alleyway, they noticed the three of you standing in the middle.  All three of you had hoods drawn over your heads.  Veller warned Volfe to be careful.  Nothing was said as they passed you.  After using the ATM, Veller suggested taking the long route back due to your presence, but Volfe said it was fine and he was not worried.  As a result, while Veller took the long route, Volfe walked alone  through the alleyway back to the nightclub.

9Mr.Pulega, you had positioned yourself on one side of the alley, while Mr.Alagaelua and Mr.Sefo were on the other.  Each of you still had hoods drawn, and you were standing in the darkest part of the alley.  As Volfe approached, Mr.Alagaelua said "This is the dude".  Volfe proceeded to walk past you.  Without warning, Mr.Sefo, you struck Volfe to the right side of his jaw with your fist.  The force of the punch caused Volfe to immediately fall.  He looked up at you and apologised, as if he had somehow been at fault.  While he was lying on the ground, you Mr.Alagaelua then kicked Volfe to the head.  The force of the kick rendered Volfe unconscious.  You took Volfe's iPhone and his wallet containing identification and bank cards, $70 in cash and other personal details.

10You fled to your car, leaving him lying in the alleyway.  When Veller could not find his friend, he notified security staff at the nightclub.  Shortly after this, staff found Volfe in the middle of the alleyway lying face down in a pool of blood, and he was unconscious.  He was taken to the front of the club, where he regained consciousness.  He was bleeding from his nose and had a graze on his forehead.  He was transported by ambulance to Sunshine Hospital. As a result of the offending he suffered two nasal fractures, two fractures to his jaw, and a fractured eye socket.  He underwent surgery for the nasal and jaw fractures, and a titanium plate and screws were inserted in his face.

11The injuries were not life-threatening, but likely to have caused severe pain.  In the short term, he experienced difficulty sleeping and eating, and in the long term, is at risk of numbness and chronic pain in the jaw and possible difficulties breathing through his nose.

12Earlier that evening, on 14 May, Mr.Frederick McKinley and Mr.William McKinley had been out celebrating Frederick's 30th birthday.  By about 12.30 am, Frederick was highly intoxicated and being looked after by his brother at a venue in Melton.  They caught a taxi home at 1.50 am.  As a result of
Frederick McKinley feeling unwell, the taxi stopped on Exford Road, and they continued walking home.  At about 2.05 am, the three of you were driving on Exford Road, and observed the victims walking.  You discussed stopping to rob them, having only minutes before assaulted Mr. Volfe.  You pulled over about two metres ahead of them.  You, Mr.Alagaelua, Mr.Pulega and Mr.Sefo got out of the vehicle, and Sala Sefo drove away. 

13As the victim walked past you, you, Mr.Alagaelua, asked for a cigarette. 
William McKinley turned around and provided three cigarettes and a lighter to you.  You asked him what they were doing, and William McKinley explained that he was just trying to get his brother home.

14The two brothers turned to leave, and without warning, you, Mr.Alagaelua, struck William McKinley to the right side of his head with your first, causing him to stumble forward.  Frederick McKinley immediately jumped on Mr.Alagaelua in defence of his brother.  All three of you then pulled Frederick McKinley to the ground, ripping his shirt in the process, and all three of you punched him and dragged him onto the nature strip.

15William McKinley yelled out to distract you, and you, Mr.Alagaelua and Mr.Pulega returned to him.  Mr.Sefo continued to hit Frederick McKinley until he was unconscious.  You, Mr.Alagaelua and Mr.Pulega punched William McKinley about two or three times to his shoulder and head, causing him to lose his balance and fall.  You continued punching him, and one of you then  kicked him in the ribs.  William McKinley curled into a ball to protect himself, and one of you took his phone from his pocket.  You, Mr.Alagaelua then said "What else have you got?  Give it to me now, take it out of your pockets".  McKinley handed over his packet of cigarettes and lighter.  You fled down a side street, returned to your car and parked nearby.  William McKinley immediately ran to his brother, who was lying in the gutter unconscious.

16As a result of the offending, Frederick McKinley suffered bruised ribs, scratches on his arms, a sore knee, and his jaw and face were very tender on one side.  The area under his arm was also bruised and painful.  William McKinley suffered ongoing dizziness and headaches.  He had swelling to the right side of his face and bruising under his eye.  He was diagnosed with concussion. 

17On Thursday 19 May 2016, police executed a search warrant at a house in Melton.  You, Mr.Pulega, were located inside a wardrobe and arrested.  Mr.Sefo, you were also arrested inside the house.  Your clothing from the night, along with some of the victim's items, were found in your bedrooms.

18On Friday 20 May, police executed a search warrant at a house in Kurunjang, and you Mr.Alagaelua, were arrested inside.  You assisted police and advised them that William McKinley's phone case was inside your vehicle.  In addition, police located Mr Volfe's house key inside the car parked at the premises. 

19Mr Mr.Alagaelua, at your interview you told police that you had "got too bored after a drink up and thought stupid stuff".  On the way home, you had a conversation about doing "something fun".  You said "We got bored and asked 'What do we want to do now?  Do something fun', and I was - they came up with the idea.  They got to agree with me, so we went and did it.  Just hitting people, just anywhere we see someone.  We all had it in our mind that the first person who was ever going to come through here is going to get it, and we didn't choose anyone who it's gonna be, we were just waiting for the first one".

20You initially said that you had first punched Volfe, and that then you had all hit him.  You subsequently clarified that Mr.Sefo first punched Volfe, and while Volfe was on the ground, Mr.Alagaelua  you kicked him in the head, and your reason for doing this was , you said, "I just don't want him to recognise us, that's all.  I didn't want to damage him, I just wanted to put him to sleep".  The victim was still conscious after the first punch, but went to sleep after the kick.  You all went through Volfe's pockets and took items.  "After that first one, we got nervous.  Don't do it again, we're not going to do that stuff again, and then we saw the other two walking on the street".  On the way home, you came across the McKinleys.

21When asked whose idea it was, you said "Oh, it's all of us' idea.  Once we saw them walking, we all just stopped the car, and we just hit them.  All threw the first punch at McKinley at the same time.  One male was just screaming, and one was defending himself.  The other one was screaming for help, I just ran to the car".  You said you felt bad about the injuries to Volfe and apologised.  You had been expecting police to come to your house.

22In your interview Mr.Pulega, you said that when you left the party you had not planned to rob people.  You just went to town for a little bit, and it just happened, "Just stupid, I reckon".  You later said you were not sure if there were discussions about what was going to happen, saying you were drunk.  On the way back to the car through the alleyway, you saw Volfe and "just hit him".  Volfe was knocked out.  "The boy fell off, they grabbed the stuff, we just ran back, go to the car".  You admitted grabbing Volfe's wallet, and Mr.Sefo took his phone.

23You said later that while waiting in the alleyway Mr.Alagaelua had said "Try and find somebody else to put ‘em down".  He was not sure if you planned that in the car or while you were walking in the alleyway.  It was said "We just talk, if somebody come near, we just bash them".  Both victims looked drunk in relation to the McKinleys.  You were not sure who pointed them out, and you were not sure that they were going to be robbed.

24You threw away the cards in Volfe's wallet.  You spent Volfe's cash the next morning on food and cigarettes.  You still had his phone and one of McKinley's phones.

25In your interview,  Mr.Sefo, you made admissions stating that when you left the rugby party, Mr.Alagaelua said "We might as well do something stupid".  "I don't know why we agreed to that idea, but we just did.  We drank a few that night, we were drunk, but we knew what we were doing.  We weren't as drunk as - the idea was to roll them.  That was the idea of the whole night".

26You said it was Mr.Alagaelua's idea to attack William and Frederick McKinley.  "When the brother came to fight, that's when I jumped in.  I just knocked him, then I knocked the other dude".  None of the victims were previously known to any of you.

27The maximum penalty for causing serious injury intentionally is 20 years' imprisonment, robbery 15 years' imprisonment, and causing injury intentionally ten years' imprisonment.  Those are maximum penalties. 

28My calculation in relation to pre-sentence detention, and counsel at the Bar table might check this: 203 days excluding today for you Mr.Alagaelua; 204 days excluding today in relation to you Mr.Pulega, and; 78 days pre-sentence detention for you Mr.Sefo before you were bailed.  I will note those numbers in the records of the Court as periods of imprisonment that have been served by way of pre-sentence detention.

29Victim impact statements were received, together with photographs of relevant injuries.  Callum Volfe is 18 and lives at home.  The night he was injured was the very first night he had gone to Pure nightclub in Melton. He was to meet friends there.  His injuries were serious, and surgery was required, which has involved the permanent placement of metal plates on his head.  He experiences numbness in his bottom lip, and his jaw movement is limited and painful.  Multiple teeth were chipped and his nose also required surgery.  He lost work in order to recover.  His social life and his personal sense of security and safety have been damaged. 

30William McKinley also wrote a victim impact statement in which he described a sense of insecurity and anxiety as well as his increasing anger and his post-traumatic stress symptoms.  He suffered vertigo due to the concussion, but more importantly perhaps he is hyper-vigilant and impatient with others. 

31Frederick McKinley has also prepared a victim impact statement, and writes of his stress for which he has had to seek counselling to deal with social anxiety, especially at night.  I take these statements into account.

32Acts of wanton violence like yours, particularly cowardly and unprovoked assaults, are far too frequent in the life of our community, and cause trauma and injury to those directly affected as victims, but also cause consternation and fearful dismay to the community, which seeks redress from the Court.  The community rightly looks to the Court for clear denunciation of such conduct in order to justly punish such infringement of basic rights by retributive sentences, which not only endeavour to protect the community, but deter others who may be like-minded.

33I must have regard, in my view, to a number of relevant matters, and cases such as yours present the court with a difficult task, which calls for a careful weighing up of those considerations.  This is so here, and it brings little relief to that difficulty when regard must be had on the one hand to the gravity of your offending and the relevant matters in mitigation, and personal circumstances.  And in particular, the youthfulness of each of you, but in particular of you, Mr.Alagaelua, and you, Mr.Sefo.

34It can bring no satisfaction to a court to sentence young men to gaol.  That is what this case requires.  I am very conscious that for each of you, this will be your first time in reclusion, and with this in mind, I have given full weight to each extenuating and ameliorating factor that I can, in order to avoid a crushing sentence.

35What should be stated at the outset in this context is that your youthfulness is important, because the policy of the law is that a young offender's prospects of rehabilitation should, by longstanding worthy policy of the law, be given prominence by a sentencing court.  It is in the long term benefit of the community to rehabilitate young offenders.

36There are cases however in which the objective gravity of the offending and the consideration of other relevant and worthy sentencing principles already mentioned, such as general and specific deterrence, just punishment and denunciation, lead to the subjugation of both the effect of youthfulness generally and its impulse to rehabilitation as primary.

37The gravity of the offending is one which is high, because perpetrated on utterly vulnerable victims, unprovoked in any shape or form, random and severe, and enacted at night, in public places, in a group company upon individuals, by the use of kicks, accompanied by theft of personal property as a secondary offence, premeditated and planned, even if not longstanding in time, but agreed tacitly or explicitly.  And then within a short time after the first performance, repeated in a contumacious fashion, upon other victims.  The maxim rightly says "delictum iteratum gravius est", "a crime that is repeated is most serious". 

38You, Anetone Alagaelua are 22 years old, and you were 21 at the time of the offending.  You were born in Samoa and moved to Australia when aged ten.  Your parents reside in Samoa.  You have two siblings who live in Brisbane, where you lived together with an aunt until age 18.  Then you moved to Melbourne.  Since 2013, you have been in a de facto relationship with plans to marry.  You have two young children.  You have a good work history as a process worker and as a bricklayer, providing also some financial support to your family in Samoa, which is to your credit.

39It is unclear how much alcohol you consumed on the night, but it was neither put that you were intoxicated, nor used as a matter of mitigation, which in any event would not have been so regarded.  Indeed, the effect of alcohol upon you was said during the plea to have been known to you, as a factor disinhibiting your behaviour and bringing out your aggressive side.  This is aggravation, not amelioration.

40You have no prior criminal history, and that is a factor that has some positive bearing on your prospects of ultimate rehabilitation and the assessment of the need for specific deterrence in your case.

41As to the former, the lack of such priors is a positive indicator.  As to the latter, the fact that you have entered the field of criminal offending at such high level in my view calls for some aspect of deterrence in the sentence, to be aimed at dissuading you specifically from this conduct in the future. 

42I take into account your plea.  I accept that it is accompanied by appropriate regret and remorse, as expressed by you in your interview, cooperation with police, and your plea.  The plea has a utilitarian value, which means it has avoided a trial with its expense and inconvenience. 

43During your plea, I received three references which I have taken into account.  These speak of an honest, hardworking employee, with your recent employer Sumasoni Vivau, the owner of AKS Bricklaying and your employer currently, prepared to re-employ you upon your release.

44References were also received from Sita Chunpun, who employed you in the past as a tree lopper, and from Sharon Namalaulu, your partner's sister-in-law, who speaks of your family commitment and good and caring character. 

45You are a physically healthy person.  Your association with your co-accused is through the Melton Broncos Rugby Club.  You are a New Zealand citizen in permanent residence here.  You have plans to bring your parents to Australia.  The issue of deportation is one which I have considered.  Such a matter impacts on sentencing in two ways.

46I accept the burden of imprisonment would be greater for someone who serves their time in expectation of the possibility of deportation upon release, and also that a sentence may result in the offender in your position losing the opportunity of permanent settlement in Australia.  However, I cannot speculate about the likelihood of deportation.  The sentence will only enliven a power to deport, and beyond this it remains a speculative possibility, despite the changes in the Migration Act, which may have brought about a qualitative difference, which however for sentencing purposes requires no change of approach in my view, given the authoritative pronouncements of the Court of Appeal in Lima Da Costa, Konamala and Schneider, all of 2016. 

47Joseph Sefo, you are 21 years old.  You have no prior criminal history, so I accept that this offending is therefore out of character.  You were intoxicated at the time, but you have conceded you knew what you were doing, and were part of the planning for this gratuitous violence.  In your case also the issue of your  youth is one which creates a significant tension in sentencing principles. 

48I repeat what I said earlier: that while this consideration remains highly relevant and important, it must in this case take a back seat because of the nature and gravity of the offending.

49I have carefully again considered the authorities mentioned which deal with this aspect, and find myself persuaded of the course I am outlining.  I note in this context the principles which highlight the benchmark for what is a serious offence as justifying adult imprisonment being high.  In the case of a youthful offender, and particularly where the offender has not previously been incarcerated, to justify a shorter period of imprisonment (see Mills and Azzopardi). 

50I accept that since the offending, you have undertaken some drug and alcohol counselling.  A letter was received from Abbey Lewis, an alcohol and other drug clinician at  ‘Stepping Up’ , a program to which to you were referred under  the CISP remand outreach pilot program in August of 2016.

51You engaged in all counselling as recommended, and have abstained for more than five months from drinking alcohol.  Through a mental healthcare plan, you accessed also a psychologist.  During that time, you worked on a casual basis as a removalist, but you were able to attend six intervention sessions at Odyssey House, which also focused on anger management.  I note the letter of
Dr Elzo in this context.

52Before turning to the contents of the report of Dr Cunningham, a forensic psychologist, I will outline the matters pertinent to your personal circumstances.  You too were born in Samoa, but moved to New Zealand aged 12.  You are a New Zealand citizen.  Your father was a police officer, and your mother also fully employed.  You are one of five siblings.  You moved to Australia in 2015 to be with your mother and sibling, who had come over sometime earlier.  Your father remains in New Zealand and is taking steps to come to this country.

53You completed your secondary education at De La Salle College, Auckland, with achievement certificates in academic studies, as well as sports studies in 2012 from the Manukau Institute.  You completed the equivalent of Year 12 and commenced studies at a TAFE college in social services.  In 2014, you obtained a certificate for entry to carpentry, and then completed a foundation education program.

54Following your move to Australia, you found work as a removalist.  You played rugby with the Melton Broncos Rugby Club for 2015.  Post-offence, you have been contracted to Allied Pickford Removalists.  Your New Zealand citizenship and the special class visa which allows you to study, work and stay in Australia is subject to the provisions of the Migration Act character test, as contained in that Act in order to maintain the visa in the face of a term of imprisonment of 12 months or more.

55I repeat my remarks in this context about the possibility of deportation as I have already made in the sentence.  There can be little doubt that the possibility of deportation and being separated from your family will have the impact on your reclusion I have outlined above, and I take this into account in your case.

56I take into account your plea of guilty.  You made full admissions during the interview by police.  You expressed remorse.  I accept your plea is made at an early time, and has the utilitarian value I have expressed before. 

57I accept it is accompanied by remorse, and I will accord your sentence a discount because of the guilty plea as I have in the case of Mr Mr.Alagaelua and Mr Mr.Pulega.

58Dr Cunningham's report is dated 4 November 2016.  One of the aspects of your background is a very tragic event of the loss of your younger brother, who suffocated to death between two mattresses.  By the nature of that event, you have attributed blame to yourself where blame does not lie.  Nevertheless, this burden is one which has conditioned your life since and created the fertile ground for anger and aggression from time to time.

59You reported good relations with all family members, and you have expressed a desire to work like your father as a policeman.  After your tragedy however, you began to drink alcohol on a frequent basis, a use which with recent counselling you have sought to address, together with anger management.  You do not have a mental illness, and Dr Cunningham administered cognitive function assessments and found you to be at a general intellectual level of functioning in the borderline range, which indicates a likely difficulty in processing that anger and problem communication.

60Through your reporting to Dr Cunningham, you wrote that the main contributors to the offending behaviour were alcohol and the association with your cousin, Mr.Pulega, who you suggest dared you to engage in the offence.  Just as in the case of the other offenders, your intoxication provides no mitigation.  According to you, you had drunk a slab of Johnny Walker, plus heaps of mixed drinks.  Having drunk alcohol from an early age, you well knew the propensity of that level of intoxication to generate disinhibition and aggression.

61Dr Cunningham also interviewed your mother, who mentioned your cousin Pulega in terms of being a bad influence, and described you as a good and caring son.  She gave evidence before me and testified as to your love of family, including your financial assistance, and to your remorse at the unacceptable behaviour.  I have taken her evidence and Dr Cunningham's report into account.  I accept that the punishment which will flow from these events through this sentence will likely deter you in the future so that your prospects of rehabilitation, because of the positive factors in your personal circumstances, are probably good. 

62Ulete Pulega, you are 28 years old.  You are Mr.Sefo's cousin.  You entered a plea after committal mention in August 2016.  I consider that to have been an early indication warranting a discount on your sentence by law.  The plea has utilitarian value, and I accept it is accompanied by remorse.  This is your first time in custody, but unlike the others, you have a prior criminal history.  Some of that history is relevant.

63In 2013, you were fined for an unlawful assault.  In 2014, you were placed on a community corrections order for 12 months for a long list of driving offences.  Then in 2015, you received a wholly suspended sentence for 28 days suspended for nine months for criminal damage and assault.

64On that same date, and because of those offences, your community corrections order was breached, and on the contravention you were ordered to do unpaid community work under another community corrections order and undergo assessment for alcohol abuse, attend an offending behaviour program, and to complete a road trauma awareness seminar.

65These priors inform the assessment of your prospects for rehabilitation and the need for specific deterrence in view of the chances offered to you in the past by the sanctions of the Court, which did not appear to have greatly altered your behaviour in recent years. 

66You were born in Samoa.  You have never met your biological father, and you were raised by your mother and a maternal uncle.  You were educated only to Year 9 in Samoa.  At age 16, you moved to New Zealand with your brother and mother.  In 2007, you moved to Australia.  The following year, you met your partner, and together you have three children, age six, eight and two. 

67Since arriving in Australia, you have worked as a labourer.  I accept that your English is still poor, and this will affect your incarceration, rendering it somewhat more isolating than usual.

68A report was received from Lindsey Vowels, a neuropsychologist dated
28 October 2016.  An additional report was received from Ms Vowels also.  Submissions based on these reports were advanced, and the discussion during the plea reflects upon some aspects of them which were sought to be used, and upon which I expressed a view.  The information which prompted the reports were your reports that you may have suffered a childhood stroke, and perhaps epilepsy, leading to speculation about an acquired brain injury, which may in turn have impacted on your offending.

69Ms Vowels outlines the episodes which may be associated with risk factors for acquired brain impairment, and adds to them the fact that you have been a heavy user of alcohol in a pattern of weekend binge drinking.  Her conclusion, despite a lack of neurological signs as an adult, is one which was explained in terms of probability of you suffering from some cumulative traumatic brain injury "which may have contributed to extremely disinhibited behaviour and very poor decision making, erratic and inappropriate offending behaviours". 

70Ms Vowels however had difficulty communicating with you during the assessment, and asked you nothing about the alleged offending.  Indeed, she found it hard to engage you in the assessment process in what she perceived to be a very immature and innocent way.  Coupled with low literacy and ready recourse to anger in everyday tasks.  The report is very detailed in many aspects, however many aspects are concerning.

71Your capacity to take responsibility for your actions seems to be extremely immature, not internalised  in a significant adult fashion, and you may be unable to grasp the viewpoint and rights of others, and feel that they are of little value to you.

72It is apparent also that you are not completely capable of empathy, or a normal degree of moral reasoning.  There are clearly several moderate and significant cognitive disabilities which Ms Vowels outlines in her report.  There is no evidence of a frank psychotic disorder, and notably she opined that it is not clear that the risk of dangers to others can be managed if you were to remain in the community without professional supervision.

73Without such supervision you will continue to react and commit offences which are unacceptable.  It is interesting to note that the addendum was sought because the language of the first report required clarification.  This was explained by Ms Vowels as necessary due to no objective corroborative material of the injuries that you refer to, and this led to a diagnosis which cannot be disproven.  I found this language highly speculative, and how it can be used in the context of the offending is unsatisfactory, as expressed during the plea.

74I accept there are compromised mental processes and cognitive impairments which affect your behaviour.  In this framework, I am prepared to accept that your moral culpability may be slightly reduced by this.

75However, this does not in my view enliven Verdins principles.  It is noteworthy that the comments and opinions linking these factors to the offending are often prefaced by being placed in a context of response to provocation, anger or a difficult situation.  This was simply not what took place on the night.  You were not reacting to provocation or any aggression.  Your own violence was planned, and not in response to the victim's behaviour. 

76Ultimately it was asserted that the prison system does not address your issues.  That may well be right to a large extent.  But it does address other primary sentencing considerations which I have already mentioned.

77Each of the lawyers appearing for each of you submitted I should consider community corrections orders, either as stand alone disposition or in combination with periods of imprisonment.  It was first said at one point by counsel for Mr.Sefo that a parole period was not warranted in the circumstances.  I do not accept that submission.

78All available material from the parole system is indicative of a system which does work to provide parole conditions well-targeted to rehabilitation and reclamation as an offender re-enters the community.  Much of this type of submission is based on myth as to the parole system as it currently operates.

79Similarly, in my view a community corrections order has limited work or application in this case.  None of you have drug problems, psychotic illnesses or psychiatric disorders, health problems or issues associated with accommodation, long-term unemployment, or any of the issues which such orders often address.  I have considered such a course and am of the view that it is not appropriate here. 

80In relation to you,  Mr.Pulega, I also received a letter from the HR manager
Kita Taylor at ASAP Workforce, the company you have worked for since January 2016 as a labourer.  She speaks of you as a capable worker.  You will be able to access this employment upon release.

81I have considered principles of totality and parsimony.  I have also considered principles of parity, and am of the view that each of you should be sentenced to the same sentence.  In my view, there should be some cumulation in relation to each count upon the base charge in recognition of the discrete offences and the victims involved.

82In relation to each of you, Anetone .Alagaelua, Ulete Pulega and Joseph Sefo.  In relation to Count 1 of intentionally causing serious injury, you are convicted and sentenced to four years' imprisonment.  On Count 2 of robbery, you are convicted and sentenced to 12 month's imprisonment.  On Count 3 of causing injury intentionally, you are convicted and sentenced to two years' imprisonment.  On Count 4 of robbery, you are convicted and sentenced to 12 months' imprisonment.  On Count 5 of causing injury intentionally, you are convicted and sentenced to two years' imprisonment.  On Count 6 of robbery, you are convicted and sentenced to 12 months' imprisonment.

83I order that one month on Charge 2, five months on Count 3, one month on Count 4, four months on Count 5, and one month on Count 6 be cumulative on the base sentence, making a total of five years.  I order a non-parole period of three years.

84But for your plea, I would have sentenced you to six years with a four-year non-parole. Those days of imprisonment for each of you which I mentioned earlier, will be noted in the records of the Court and I declare them to be days served by way of pre–sentence detention.