Fonua v The King
[2022] VSCA 213
•30 September 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0081 |
| TAULEVA FONUA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 September 2022 |
| DATE OF JUDGMENT: | 30 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 213 |
| JUDGMENT APPEALED FROM: | [2022] VCC 908 (Judge Hogan) |
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CRIMINAL LAW – Sentence – Appeal – Intentionally cause injury, robbery and theft – Brutal, cowardly and vicious attack – Prior criminal history – TES of 3 years and 1 month, with NPP of 2 years – Whether sentence manifestly excessive – Whether sentence breached principle of totality – Not reasonably arguable that sentence manifestly excessive – Not reasonably arguable that principle of totality breached – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Ms JL Clark | ||
| Respondent: | Mr JCJ McWilliams | ||
Solicitors | |||
| Applicant: | Tony Hannebery Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
T FORREST JA:
The applicant pleaded guilty in the County Court to one charge of intentionally causing injury,[1] one charge of robbery,[2] one charge of theft[3] and a related summary offence of committing an indictable offence while on bail.[4] On 31 May 2022, following a plea hearing conducted on 26 and 27 April 2022, the applicant was sentenced as follows:
[1]Contrary to s 18 of the Crimes Act 1958.
[2]Contrary to s 75 of the Crimes Act 1958.
[3]Contrary to s 74 of the Crimes Act 1958.
[4]Contrary to s 30B of the Bail Act1977.
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Intentionally cause injury | 10 years | 2 years | Base |
| 2 | Robbery | 15 years | 18 months | 6 months |
| 3 | Theft | 10 years | 18 months | 6 months |
| RSO | Commit indictable offence on bail | 3 months | 1 month | 1 month |
| Total Effective Sentence: | 3 years and 1 month | |||
| Non-Parole Period: | 2 years | |||
| Pre-sentence Detention: | 313 days | |||
| Section 6AAA Statement: | 5 years with a NPP of 3 years and 8 months | |||
The applicant now seeks leave to appeal on the following proposed grounds:
1.The individual sentences, non-parole period and total effective sentence are manifestly excessive.
2.The sentencing judge erred by imposing a sentence that offended the principle of totality.
Circumstances of the offending
The applicant committed his offending together with two co-offenders, Raymond Livori and Asipeli Vea. Their victim was a 45 year old man, Daniel Corcoran. Mr Corcoran had known Livori for about eight months, having met through a friend. Mr Corcoran had met the applicant a few times. He had not met Vea prior to the offending.
On 8 February 2020, Livori had been fighting with his girlfriend, Belinda Showler. Mr Corcoran came over by request to help settle Livori down, ultimately taking Ms Showler back to his address in Melton for a few hours. Later that day, Mr Corcoran dropped Ms Showler back to Livori’s address. Over the following days, Livori sent messages and called Mr Corcoran a number of times, asking him to come to his house. He also left threatening voicemails. It is believed that Livori thought that Mr Corcoran was having a relationship with Ms Showler.
On 13 February 2020 at approximately 3:30 pm, Mr Corcoran attended Livori’s address in his Nissan Maxima, which he parked on the grass opposite Livori’s house. Mr Corcoran walked up the driveway into the open garage where he saw Livori, Ms Showler, Vea and the applicant. Vea was sweeping when Mr Corcoran first arrived.
When Mr Corcoran entered, Livori and Ms Showler left the garage. Mr Corcoran shook hands with the applicant and Vea, and made small talk for about a minute, before Livori returned to the garage with one hand behind his back. Mr Corcoran extended his hand to greet Livori, however Livori punched him hard to the mouth, causing him to fall to the ground. At least one of Mr Corcoran’s teeth fell out as a result of the first punch. Livori yelled to Vea to shut the garage door, which he did.
As Mr Corcoran lay on the floor in a ball holding his mouth, Livori stood on one side of him and the applicant stood on the other. Mr Corcoran was punched and kicked by the two men whilst he was laying on the ground (charge 1 — intentionally cause injury). During this time, Vea was standing nearby but was not directly involved in the assault.
The applicant shouted at Mr Corcoran ‘give me the keys’ and was ultimately successful in taking his car keys out of his pocket (charge 2 — robbery). At the same time, Livori poured petrol over Mr Corcoran, and told him he would burn him, adding ‘If you don’t believe me, ask [the applicant]’. Sometime after this, the applicant exited the garage via a rear door with the stolen car keys. He then got into Mr Corcoran’s car and drove it away (charge 3 — theft).
After the applicant had left, Livori continued to assault Mr Corcoran by stabbing him in the leg with a screwdriver. They then grappled with one another while Livori was holding a tomahawk or hammer. Mr Corcoran was able to run out of the garage and back onto the street where he ran to a nearby bottle shop and asked for an ambulance to be called. Bystanders noticed that Mr Corcoran smelled of petrol, was missing teeth, had blood on his face and all over his jeans, and had a split lip.
Mr Corcoran suffered a puncture wound to his leg, cuts to his upper lip and left eyebrow, a large haematoma to his right eye, bruising to his central forehead and back of his head, and lost seven teeth as a result of blunt force trauma to the mouth.
At the time of the offending, the applicant was on three sets of bail (the related summary offence of committing an indictable offence while on bail). When interviewed by police on 9 March 2020, the applicant told, what was described by the judge as, ‘a host of lies’.[5] The applicant told police that he had tried to break up the assault; he had drunk three cups of Jack Daniels with Coke prior to the assault; he did not know why Mr Livori attacked his victim; and he did not take Mr Corcoran’s car keys.
[5]DPP v Fonua [2022] VCC 908, [8] (‘Reasons’).
Personal circumstances
The applicant was 29 at the time of offending, and 31 at the time of sentencing. He was born in Tonga, the eldest of three children. His parents separated when he was about 16. He spent some time in Tonga with his father, but ultimately the whole family moved to Australia.
The applicant attended high school in Australia until Year 10 or 11. He then worked with his father sorting sheepskin hides for a time and has had sporadic work driving a truck doing deliveries and as a security guard. He is married with six children, who were aged between two and 10 at the time of sentencing. The applicant, his wife and children lived with his mother after he was granted bail on 1 October 2020 (he having been in custody on remand since his arrest on 9 March 2020).
In May and July 2021, the applicant was charged with further offences, and on 10 August 2021 his bail was revoked. He has a criminal history going back to 2015 in Victoria, with an additional offence having been proved against him in the ACT in 2009. His prior criminal offending includes burglary, theft, obtaining property by deception, theft of a motor vehicle, possessing illicit drugs, possessing cartridge ammunition, being a prohibited person in possession of a firearm and committing an indictable offence while on bail.
Sentencing reasons
After describing the circumstances of the offending[6] and referring to the ‘host of lies’ told by the applicant when he was interviewed by police,[7] the judge summarised Mr Corcoran’s victim impact statement and referred to photographs which showed the extent of Mr Corcoran’s injuries.[8] The judge noted that Mr Corcoran described himself as ‘thoroughly bashed in the face’, before saying that it was ‘clear that he had multiple front teeth knocked out on both the top and bottom of his mouth’. Her Honour described close-up photographs of Mr Corcoran’s face that showed the extent of facial bruising five days after the assault. The judge described the photographs as showing that he had two black eyes, obvious facial lacerations and a ‘gaping hole left by the lack of teeth on both the top and bottom of his jaw’.[9]
[6]Ibid [3]–[7].
[7]Ibid [8].
[8]Ibid [9].
[9]Ibid.
The judge referred to the applicant’s criminal history, saying that over the years he had been given dispositions by way of a without conviction fine, a without conviction adjourned undertaking, a community correction order (which the applicant had breached) and two sentences of imprisonment of 140 days and 100 days respectively. The judge noted that the sentences of imprisonment were imposed for earlier offending but that the sentences were not imposed until after the offending against Mr Corcoran. Her Honour then said that it was an aggravating feature of his offending against Mr Corcoran that the applicant was ‘apparently on three sets of bail at the time’.[10]
[10]Ibid [10].
The judge summarised the applicant’s interactions with the Court Integrated Services Program (CISP) between October 2020 and April 2021,[11] before summarising the applicant’s personal circumstances in the terms we have already described.[12]
[11]Ibid [11].
[12]Ibid [12].
The judge referred to the applicant’s plea of guilty, noting that he had conducted a contested committal where the victim had been cross-examined, and then saying that he had pleaded guilty to the lesser charge of intentionally causing injury, rather than the offence with which he was initially charged (intentionally causing serious injury). Her Honour noted that the applicant had indicated that he would plead guilty in November 2021, during the time of pandemic restrictions when it was ‘virtually impossible to conduct criminal trials’.[13]
[13]Ibid [14].
The judge said there was no doubt that Livori began the assault on Mr Corcoran. She noted, however, that the applicant ‘very quickly joined in after the victim was curled up on the floor holding his mouth’. Her Honour went on:
Soon after you joined Mr Livori in kicking and punching him whilst he was down, you began shouting at him to give you his car keys, which you subsequently stole during the assault and then used to steal his car. It was a brutal and totally unprovoked assault on an already disabled victim, who had done you no harm whatsoever. … There is simply no explanation provided for your conduct which was so cowardly and lacking in empathy for a fellow human being. Your mindset which prompted such cruelty remains totally unexplained, other than that you had drunk a quantity of Jack Daniels beforehand. Although it is not suggested that you were party to Mr Livori pouring petrol over the victim and threatened to set him alight, you left the victim in the company of Mr Livori and Mr Vea when you well knew that he was injured from the assault which you had helped perpetrate. I add here that you are a man of extremely large build. There can be no doubt about the extent to which you added to the atmosphere of intimidation in Mr Livori’s garage, as well as the physical attack on the victim who was aware that he was trapped in the garage and outnumbered by three to one.[14]
[14]Ibid [16].
The judge said that ‘this wanton violence must be denounced by the Court and emphasis must be placed upon general deterrence so that anyone who is minded to attack another human being in such a vicious and unprovoked way … [will know that it] will not be tolerated and will be appropriately punished’.[15]
[15]Ibid [17].
The judge said that the applicant added to his victim’s injury by depriving him of his newly acquired car, which police had later located in a damaged condition. Her Honour noted that in light of the applicant’s prior history of dishonesty offending, there was a need for specific deterrence in relation to the robbery and theft charges.[16]
[16]Ibid [18].
In relation to the utilitarian value of the applicant’s plea, the issue of remorse and the applicant’s prospects of rehabilitation, the judge said:
I accept that your pleas have utilitarian value, which are enhanced as they have been entered during the time of the COVID restrictions when the running of criminal trials in this state has been hampered. However, I do not consider that there is any evidence of remorse. I lost track of the number of lies which you told police during your lengthy record of interview. Whilst by your plea of guilty you have accepted legal responsibility, I find no evidence that you have any particular insight into your offending or the impact that it has had upon your victim. Further, although you are to be given credit for the extent to which you engaged with the CISP program, the number of sessions which you attended for drug and alcohol counselling was very limited in the context of a long-term substance abuse problem and you declined to engage in any further psychological counselling after one session, claiming that you did not need it.
I do not find that you have good prospects of rehabilitation as urged by your counsel. Your work history as detailed to the Court was vague and patchy. In the past, you had been given the opportunity to undergo treatment and rehabilitation as part of a Community Correction Order but you failed to avail yourself of that opportunity. I have previously noted the aggravating factor of having committed these offences whilst on bail for quite a number of other matters, some of which you, now, apparently have indicated you propose to plead guilty to at a consolidated plea hearing on 3 June 2022. These include a charge of assault and making a threat to kill, as well as dishonesty offences. In addition, subsequent to the offending for which I must sentence you, you have served a sentence of 100 days’ imprisonment handed down at Sunshine Magistrates’ Court on 25 May 2020 for offences of dishonesty, possessing a firearm and ammunition, possessing illicit drugs and driving offences. Obviously, it is no part of my task to punish you for any of these matters but they do reinforce the view that I have formed concerning your poor prospects of rehabilitation.[17]
[17]Ibid [19]–[20].
The judge then said that, in all of the circumstances, the overall gravity of the applicant’s offending was such that the only appropriate sentence was one of imprisonment with a head sentence and non-parole period.[18] Before imposing the sentence to which we have already referred, the judge finally:
•noted that the applicant had already endured ‘more burdensome imprisonment’ by reason of the pandemic, and that the conditions of incarceration would likely continue to be more burdensome because of the pandemic;[19]
•said that she took into account the principle of totality, both in relation to the custodial sentences imposed subsequently to his offending and because the offending against Mr Corcoran (while discrete offences) ‘all occurred within a short period of time on the same day’;[20] and
•referred to the need to avoid double punishment in relation to the related summary offence (committing an indictable offence while on bail), given that being on bail was an aggravating feature of the applicant’s offending constituting the indictable offences.[21]
[18]Ibid [21].
[19]Ibid [22].
[20]Ibid [23].
[21]Ibid.
Applicant’s submissions
In support of his contention that the sentence was manifestly excessive (proposed ground 1), the applicant relied upon the following matters:
•his plea of guilty, and the fact that it was made during the pandemic;[22]
•he was 29 at the time of the offending;
•his limited criminal history, and absence of any prior history for offences of violence or robbery;
•his period on remand on these charges was his first time in custody;
•his presentence detention had been served in ‘pandemic conditions that [had] all but eliminated prison visits and the availability of prison programs’; and
•the increased burden of imprisonment on him caused by him being separated from his wife and children.
[22]See Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
Additionally, he submitted that the terms of imprisonment of 18 months on each of the robbery and theft charges was excessive and disproportionate to the objective criminality of those offences — those offences having been ‘spontaneous and opportunistic’.
In support of his contention that the sentence offended the principle of totality (proposed ground 2), the applicant observed that his offending ‘occurred in one episode, with each offence occurring within a short space of time of each other’. The applicant also noted that the victim of each offence was the same, and submitted that cumulation of 1 year and 1 month offended the principle of totality and was manifestly excessive.
Consideration
There is no substance in either of the applicant’s proposed grounds of appeal. The sentences and orders for cumulation were, in all the circumstances, moderate. Indeed, the sentence on charge 1 was, if anything, lenient.
The applicant’s assault on Mr Corcoran was, as the judge described it, brutal, cowardly and vicious.[23] It was committed when Mr Corcoran was curled up on the floor, defenceless and outnumbered three to one. It caused significant injuries and had significant consequences for Mr Corcoran. In the circumstances, it is not possible to suggest that a sentence of 2 years’ imprisonment was anything other than lenient.
[23]Reasons, [16]–[17].
The sentences imposed on charges 2 and 3 (the robbery and the theft) were moderate in the context of the applicant’s prior criminal history for offences of dishonesty. The judge was correct to say that there was a need for specific deterrence with respect to these offences.[24] The proposition that the sentences for these offences or the orders for cumulation offended the principle of totality is simply not reasonably arguable. When one has regard to all of the circumstances of the applicant and his offending, the only conclusion that one can reach is that the sentences, orders for cumulation, total effective sentence and non-parole period were entirely appropriate.
[24]Ibid [18].
Conclusion
The applicant’s application for leave to appeal against sentence must be refused.
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