Director of Public Prosecutions v Kalepo
[2016] VCC 477
•22 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-15-00359
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Samuel Kalepo |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2016 | |
DATE OF SENTENCE: | 22 April 2016 | |
CASE MAY BE CITED AS: | DPP v Kalepo | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 477 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | OPP |
| For the Accused | Mr R. de Vietri | Victoria Legal Aid |
HER HONOUR:
1 On the evening of 27 October 2012, you, Samuel Kalepo, and two friends were at a shopping centre in Mill Park. A young woman you and one of your friends knew was standing outside the front of the shop with two young men. Your friends were laughing as they looked in her direction. Aaron de Jong, one of the two young men with her, walked towards your group and asked if you had a problem with her.
2 He was about ten metres away from you. Without saying anything, you covered the ten metres between you, gripped him by the collar and punched him twice to the left side of his face with your right fist. The force of your punches was such that he fell to the ground, hitting his head on the concrete footpath.
3 You left him where he dropped, lying unconscious on the footpath, and ran off with your two friends.
4 Mr de Jong’s friends cradled his head until the police and ambulance arrived. Paramedics stabilised him as he lay on the ground before moving him to the ambulance. Already it could be seen his jaw was swollen. Ultimately they took him to the Northern Hospital in Epping where it was revealed he had sustained a major concussion and a displaced fracture of his jaw. Photos taken the following day show deep and extensive bruising and quite extraordinary swelling to the left side of his face. He was hospitalised for a week. He had a metal plate inserted in his jaw, and still, over three and a half years later, suffers considerable residual symptoms. The plate will remain in his jaw permanently. He has suffered nerve damage, resulting in numbness to the side of his face and experiences constant pain in his jaw and face. He still cannot eat food such as a steak, or chew without pain, and in addition to the constant underlying pain, he has daily episodes of shooting pains in his jaw.
5 The social and psychological symptoms have been significant. He reports being anxious, angry and depressed. He feels a different person, one he does not like, prone to outburst of anger, fearful of being out in public, fearful of people of Islander appearance, unable to sleep properly, sometimes struggling just to get through the day. His fear of sustaining further injury to his jaw, if it is struck, has led him to give up playing cricket and makes him fearful of engaging in other sporting activities, or even of being jostled in a crowd.
6 These are not unusual symptoms for a person subjected to a vicious, unprovoked attack such as the one you unleashed on Mr de Jong.
7
You were arrested and questioned a month later. You admitted punching
Mr de Jong. You told police you felt an immediate threat from him and thought it necessary to get in first, by punching him. However, the genuineness of that explanation is undermined by your acknowledgement of the distance between you, the absence of any threat from Mr de Jong, and the significant disparity in size between you. You are considerably larger. When told Mr de Jong had a broken jaw, you accepted you had caused it and said you were sorry for him, but said that you were unaware at the time that that was what you had done.
8 These were not randomly aimed punches. You held Mr de Jong by the collar. As your counsel acknowledged, that enabled you to take aim and hit your intended target to the side of his face. You did this not once, but twice. Whether you dropped him as he fell, due to the force of your punches, whether you loosened your grip as he fell, so letting him drop, or whether the force of his dead weight as he dropped resulted in him slipping out of your grip, is of little moment. It was clear he dropped as a result of the force of your punches and you released your grip on his collar. He fell straight down, striking his head on the concrete, and you, in a manner that can only be described as callous, irresponsible and cowardly, ran away and left him there for dead.
9 As I said to Mr De Vietri, it is sheer luck rather than any conscious effort or exercise of control on your part, that you are not today sitting in the Supreme Court facing a king-hit manslaughter charge. Having said that, I reiterate that I appreciate that I must sentence you for the charge for which you have pleaded guilty, that is recklessly causing serious injury, and for the consequences of that offence.
10 It is clear that subject to considerations personal to you, general deterrence and denunciation must play a significant role in sentencing you. So much was acknowledged by your counsel in his thoughtful plea. Mr De Vietri acknowledged both the seriousness of the offending and that a term of imprisonment was inevitable. He submitted that the appropriate sentence was a combination sentence, that is what he described as “a relatively short term of imprisonment”, followed by an extended community corrections order.
11 He relied on your relative youth, you were only 20 at the time and are now 23; your limited criminal history, only two previous court appearances, one of which was in the Children's Court and both of which had resulted in non-conviction adjournments; evidence of remorse, your guilty plea and telling the police you felt sorry for the victim when you were told you had broken his jaw; the effect on you of father’s death only two weeks earlier, this was the first time you had been out with friends since his death; your prospects of rehabilitation, put by him as no higher than fair; and what was said to be the disproportionate punishment which would otherwise be imposed were the sentence to trigger the risk of deportation.
12 I accept that you were young at the time and that generally, a greater weight should therefore be given to rehabilitation for young offenders. However, as Azzopardi and other cases make clear, the more serious the offence, the more weight needs to be given to general deterrence and denunciation. Vicious, unprovoked attacks of punching to the head, where victims when falling, risk striking their head when they fall to the ground, are unacceptable in a civilised community. Attacks in public places where people are just going about their daily business, on people much smaller than the attacker, are to be condemned in the strongest of terms. Repeated blows, conduct such as holding the victim so as to get a better aim, and dropping them, or letting them drop, are aggravating features which also call for a sentence to properly reflect denunciation and deterrence, and the callousness of running away from an obviously injured victim, leaving them on the ground where they fell, adds again to the seriousness of the offending.
13 You do have a limited prior criminal history, but it must be borne in mind you were only 20 at the time. The prior criminal history is of offences that are more than street offences. One is an attempted robbery, the other, causing property damage. That is, they involve violence to the person, or threatened violence, and the taking of or destroying of other people’s property. This offending breaches the adjourned undertaking imposed by the Magistrate's Court in February 2012. The undertaking clearly did not act as a deterrent or an encouragement to you to behave better.
14 Since being charged with these offences, you have been charged with and dealt with for other violent offences, including a breach of a family violence order. Clearly, the sorrow you expressed for breaking Mr de Jong’s jaw has not curbed your violent behaviour or enhanced your prospects for rehabilitation, or been used by you to improve your prospects for rehabilitation. The fact that you have had these charges hanging over your head for so long has not acted to deter you from engaging in further violent offending, nor has the expression of sorrow that you expressed when you discovered that you had broken Mr de Jong's jaw, led you to face your responsibilities by not prolonging the court proceedings.
15 You told your counsel you could not remember anything about the circumstances of the subsequent offending. Whether you are being truthful about that I cannot determine and it does not much matter that I cannot. If you can remember, you are being less than frank, if you really cannot remember, it suggests you do not regard offending or punishment seriously. Neither bodes well when considering your prospects for rehabilitation.
16 It has taken over three and a half years for the matter to come on for hearing. That is by and large due to delaying conduct on your part. You were originally charged with intentionally cause serious injury and its lesser alternatives. Your first committal mention was listed for 18 February 2013, only months after the offence itself. You failed to answer your bail on that occasion and according to the schedule provided to me, on the next three occasions on which you were subsequently re-bailed to appear.
17 You finally did appear at a committal mention in November 2014, two years after you were charged. However you were unrepresented and it would appear had done nothing, or nothing effective to obtain legal representation. Efforts to have you engage with Legal Aid and obtain representation resulted in a further series of delays. Finally in March 2015, nearly two and a half years after the event, you were committed to this court for a plea hearing. Your lawyers had negotiated a resolution to the charges and the plea of guilty to recklessly causing serious injury was accepted.
18
Your first plea date was set for 1 June 2015, three months after you were committed to this court. Again, a combination of failure to arrange legal representation, euphemistically described as funding issues, and failures to appear, resulted in further delays. A further five court dates were set before you finally appeared before me on the third listed plea date set by this court,
14 April 2016. By then you had been remanded in custody, following your arrest under a warrant issued by this court, as a result of your failure to appear on a plea date that itself had been re-fixed, in order to provide you with the time to provide the necessary information to Legal Aid to secure your funding.
19 Your conduct, which has led to these unnecessarily protracted proceedings, does not indicate remorse. You have committed further violent offences and if indeed you are struggling to recall the circumstances, you have done nothing to find out what you did or why, or to address the causes of your offending behaviour. You have repeatedly flouted court orders, failing to appear on bail, breaching an adjourned undertaking, and a family violence order. One of your prior court appearances included being dealt with for an admitted failure to answer bail. It was one of the charges that had led to the release on the adjourned undertaking that you were on at the time of this offending.
20
The only explanations advanced for the repeated breaches of bail by
non-appearance and the delays caused by your failure to seek legal advice and arrange representation, were your failure to appreciate the seriousness of the situation and your prioritising the need to work to support your family over your court commitments following your father’s death. They are both totally inadequate explanations. You could have been under no illusion as to the seriousness of the situation you were facing. You were arrested under warrant four times for failing to appear in respect of these charges. There is nothing to suggest that you are of anything other than average intelligence. There is nothing to suggest that you had any difficulty at school and I am told that you have held down regular employment since leaving school.
21 You had already been dealt with for failing to appear on bail in your previous Magistrates' Court appearance. Whilst on bail for these offences you committed further offences and by the time you were dealt with for them, you were also facing a further charge of fail to appear. One other of your charges in a subsequent court appearance was for breach of a further court order, a family violence order. All of this suggests that you do what suits you and have no respect for court orders.
22 So it is, that in addition to the charge of recklessly cause serious injury, you have pleaded guilty to two summary charges of failure to appear on bail, the first relating to the failure to appear at the first committal mention, the second in respect of your second failure to appear at committal mention after you had been re-bailed.
23
So far as the extenuating circumstances relied on to put the attack in context,
I was told your father had died only two weeks earlier, that you were grieving, and that this was the first time you had been out with friends since his death. All I can say is, it does not seem to be respectful to your father’s memory, or to provide any extenuating circumstances.
24 All this indicates that Mr De Vietri was realistic in characterising your rehabilitation prospects as fair. It has long been the case that sentences imposed on young offenders should be structured to encourage rehabilitation and that often, that will result in rehabilitation being given greater weight in the sentencing mix, than would be the case for an older offender. It is important to note the significance of the word “encouraging” when speaking about the weight to be given to rehabilitation when sentencing a young offender. That implies encouraging rehabilitation already underway, or encouraging a person who demonstrates a commitment to rehabilitation, to pursue that course, or putting opportunities in the way of a person so they can, should they choose to accept them, take up those opportunities. How rehabilitation is to be encouraged in a particular case will depend on the circumstances of the particular offender, their past and current conduct.
25 All of this must be borne in mind when considering Mr De Vietri’s submission that the appropriate sentence is a “combination sentence”.
26 Even if I thought had that, following the guidance provided to sentencing judges in Boulton, that a sentence with a component of imprisonment of two years or less, followed by a community corrections order, was sufficient to reflect the gravity of the offending, I am confronted by the absence of evidence that you have any commitment to complying with a community corrections order. In your case, there is not only an absence of evidence of such commitment, but positive evidence of persistent flouting of court orders which, among other things, required you to attend at a place and a time set by the court for a court hearing, to be of good behaviour, or to abstain from particular types of bad behaviour. There is simply no basis for any degree of confidence that you would comply with the conditions of a community corrections order.
27
You are now 23, well old enough to understand the importance of court orders, mature enough to understand the consequences of non-compliance and sadly, experienced enough in your contact with the courts to understand the requirements imposed upon you by particular court orders, and yet, as the history that I have set out demonstrates, you continue to excuse your
non-compliance with court orders by saying you did not realise until remanded in custody following the execution of the last fail to answer bail warrant, how serious the charge was, or how important it was to comply with the court orders.
28 Even if I had been presented with some evidence you would commit to compliance with a community corrections order, there is another difficulty with the sentence contended for by Mr De Vietri. He submitted that the term of imprisonment should be less than 12 months, as a sentence longer than that would have a disproportionately negative effect on you.
29 You are a New Zealand born man of Maori origin, who was brought to Australia at the age of six, when your parents crossed the Tasman, bringing you and your four siblings to Australia with them, in the hope of a better life.
30 You have lived in Australia since then, and I was told that all of your immediate family are here. I was told you have no contact with extended family in New Zealand, and no friends or community engagement with New Zealand. It was for that reason that Mr De Vietri submitted that deportation would have a disproportionately negative effect on you.
31
It is clear that if you are sentenced to a term of imprisonment of greater than
12 months, you are at risk of deportation. Since the introduction of s.501(3)(a) of the Migration Act in late 2014, a person who is not an Australian citizen is automatically subject to a deportation order if sentenced to a term of imprisonment of greater than 12 months. That deportation will take effect unless the Minister exercises his discretionary power to revoke it.
32 The risk of deportation if sentenced to a term of imprisonment of 12 months or more has long been a feature of Australia’s migration laws. It was the law before the 2014 amendments and remains the law since then. What has changed is the now automatic deportation order with the need to seek to persuade the Minister to exercise a discretion to revoke it, rather than a process where deportation is a risk, should the Minister decide the person is of bad character, with then a subsequent right to appeal against or seek a review of that decision.
33 It is clear that the prospect of deportation will, in your circumstances, make the burden of imprisonment more onerous, as you have lived most of your life here and had hoped to continue to do so. Your family and your roots are here now. You must live with the uncertainty as to your fate and the fear that you will have lost the opportunity to make Australian your home and to continue to live here. That is clearly a matter to be taken into account in determining the appropriate sentence, and which would reduce the sentence otherwise appropriate.
34 This was reaffirmed by the Court of Appeal, as recently as Tuesday of this week, in Schneider v The Queen [2016] VSCA 76, which confirmed again the line of priority from Guden v The Queen [2010] 28 VR 288, Lima da Costa v The Queen [2016] VSCA 49 and Konamala v The Queen [2016] VSCA 48, which had been referred to by Mr De Vietri in the course of his plea submissions.
35 However, it is not the law that the sentence that I impose should be reduced below that which is otherwise appropriate for the offending and your circumstances, so as to place you below the threshold for automatic visa cancellation. Whilst it is appropriate to reduce the sentence otherwise appropriate in recognition of the added burden of punishment of the uncertainty of your fate, the risk of deportation, consequent loss of opportunity to remain and make your life here, the risk of deportation does not require me to fix a disproportionately low sentence, that is a sentence of under 12 months, in order to avoid that consequence.
36 I have come to the view that no sentence other than imprisonment is appropriate and that your history of non-compliance with court orders makes you an inappropriate candidate for a combination sentence. I have come to the view that this is a serious example of the offence of recklessly cause serious injury, and that although your relative youth requires more weight to be given to encouraging rehabilitation than would be the case for an older offender, that general deterrence and denunciation are not, in your circumstances, and having regard to the circumstances of the offence, outweighed by the need to encourage rehabilitation. What you make of the opportunity afforded to you by the sentence and the prospect for parole, is a matter for you. I reduce the sentence otherwise appropriate by reason of your guilty plea and in recognition that imprisonment will be more onerous because you will serve it with your future ability to remain in this country undecided, facing the prospect that your hope of a future here will be removed, and of the difficulty of returning to a country you have not lived in since you were a child.
37 Given your history of failure to answer bail, I am making the sentences for those charges cumulative on the sentence on the charge of recklessly cause serious injury.
38 Could you now please stand.
39 Samuel Kalepo, on the charge on the indictment of recklessly cause serious injury, and the two summary charges of fail to answer bail, you are convicted.
40 On the charge of recklessly cause serious injury, you are sentenced to be imprisoned for a period of four years. On each of the summary charges, you are sentenced to be imprisoned for one month. Those sentences are to be served cumulatively upon each other and the sentence on Charge 1.
41 That makes a total effective sentence of four years and two months.
42 I fix a period that you must serve before being eligible for parole, as two years and two months.
43 I am about to make a pre-sentence declaration. Can I confirm that it is 116 days?
44 MR DE VIETRI: Yes, Your Honour.
45 HER HONOUR: I declare that you have spent 116 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
46 Pursuant to s.6AAA of the Sentencing Act, I declare that but for you pleas of guilty, I would have sentenced you to a total effective sentence of five years and six months, and I would have fixed a non-parole period of three years and three months.
47
I have been asked to make a forensic sample order and I propose to do so.
I am satisfied that the seriousness of the circumstances of the offending warrant the order. I note that the order is not opposed.
48 Do the sentences that I have pronounced reflect what I said I intended to do?
49 MR DE VIETRI: Pardon me, Your Honour?
50 HER HONOUR: Do the sentences that I have pronounced reflect what I said I intended to do?
51 MR DE VIETRI: Yes, Your Honour, yes.
52 MR ROPER: Yes, Your Honour.
53 MR DE VIETRI: As the court pleases.
54 HER HONOUR: Are there any further orders that are required to be made?
55 MR DE VIETRI: No, thank you, Your Honour.
56 MR ROPER: No, Your Honour.
57 HER HONOUR: All right, thank you. Could you remove Mr Kalepo please.
58 Mr De Vietri, it was not due to any lack of skill, thought or care on your part that you did not get the outcome that you had contended for.
59 MR DE VIETRI: Thank you, Your Honour.
60 HER HONOUR: It was, I thought, a particularly thoughtful and well-presented plea.
61 MR DE VIETRI: I appreciate that, thank you, Your Honour.
62 HER HONOUR: Thank you. Thank you, adjourn please.
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