Isaako v The Queen

[2012] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

ISAAKO v R [2012] NSWCCA 115

Hearing dates:

17 May 2012

Decision date:

06 June 2012

Before:

ALLSOP P [1]
HOEBEN JA [2]
BEECH-JONES J [3]

Decision:

(1) Leave to appeal be granted.

(2) Appeal allowed in part.

(3) Set aside the sentence imposed by the District Court on 26 May 2010 for the offence under s 95 of the Crimes Act 1900 committed on 18 August 2008 and, in lieu thereof, for that offence sentence the applicant to a non-parole period of 4 years commencing 16 September 2016 and expiring on 15 September 2020 with a balance of term of 4 years commencing 16 September 2020 and expiring on 15 September 2024.

Catchwords:

Crime - appeal against sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnston v The Queen [2004] HCA 15; (2004) 78 ALJR 616
R v Koloamatangi [2011] NSWCCA 288
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Kelly [2010] NSWCCA 259
R v Henry [1999] NSWCCA 111 (1999); 46 NSWLR 346
Veen v The Queen [No 2] [1998] HCA 14; (1988) 164 CLR 465
Wong v R [2001] HCA 64; (2001) 207 CLR 584

Category:

Principal judgment

Parties:

Thomas Isaako (Applicant)
Regina (Respondent)

Representation:

H Cox (Applicant)
J Girdham (Crown)
O'Brien Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/10169

 Decision under appeal 

Date of Decision:

2010-05-26 00:00:00

Before:

Solomon DCJ

Judgment

1. ALLSOP P: I agree with Beech-Jones J and the orders which he proposes.

1. HOEBEN JA: I agree with Beech-Jones J and the orders which he proposes.

1. BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by the District Court in respect of two violent and unprovoked attacks.

1. On 8 March 2010 the applicant was arraigned on an indictment which charged two counts. The first count was that on 9 August 2008 he caused grievous bodily harm to David Keohane with an intention to murder him. The second count was that the on 9 August 2008 he did in company rob David Keohane and at the time of the robbery inflict grievous bodily harm contrary to s 98 of the Crimes Act 1900 ("the s 98 offence"). The applicant pleaded not guilty to the first count and guilty to the second count. On 16 March 2010 the jury returned a verdict of not guilty on the first count.

1. The applicant also pleaded guilty to a charge that on 18 August 2008 he robbed Ben Wang in circumstances of aggravation namely intending or reckless as to the infliction of actual bodily harm contrary to s 95 of the Crimes Act ("the s 95 offence").

1. For the s 98 offence, his Honour sentenced the applicant to a term of imprisonment comprising a non-parole period of 10 years to date from 16 September 2008 with a balance of term of 5 years. For the s 95 offence, his Honour sentenced the applicant to a non-parole period of six years to date from 16 September 2016 with an additional term of 5 years. His Honour made a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act").

1. The combined effect of the two sentences was that the applicant received an accumulated non-parole period of fourteen years with a balance of term of 5 years. If the sentences are left undisturbed he will be eligible for release on parole on 15 September 2022.

1. No separate ground of appeal is directed towards the sentence imposed for the s 98 offence. This is not surprising given the savageness of the attack that was involved. It is still necessary however to describe the circumstances of that offence as they have some relevance to the s 95 offence and the ground of appeal that complains that his Honour failed to have regard to the "totality" principle when fixing a start date for the sentence for the s 95 offence (see Johnston v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]).

The section 98 offence

1. At around 2.43 am on 9 August 2008 the victim, David Keohane, was walking along Coogee Bay Road towards his home. The applicant and his co-offender had been drinking and had reached an agreement to "roll someone"; i.e. rob them and use violence. The victim turned into Brook Street, Coogee. The applicant struck the victim in the head region with a blow from behind. The victim fell to the ground. While on the ground and defenceless he was struck a number of times in the head region by the applicant and his co-offender.

1. At some point the victim was stabbed on the right side of his face with a sharp object. The applicant and his co-offender left the victim critically injured. The applicant stole his mobile phone which he used to make numerous calls. The co-offender stole his wallet and possessions.

1. On October 2008 the applicant was arrested when he reported for bail on the s 95 charge. He was interviewed on 9 October 2008 and made extensive admissions.

1. No fair or accurate description of the applicant's criminality is complete without describing the devastating injuries inflicted on the victim. They reveal the extreme violence involved in the attack. The victim was resuscitated by a passer by and taken to hospital where he remained unconscious for 218 days. He underwent facial reconstruction and suffered traumatic brain damage. A review of the list of injuries he suffered prompts a sharp intake of breath:

(1)Multiple facial fractures.

(2)A large fracture to the left frontal and parietal bones, extending anteriorly to above the roof of the left orbit and comminuted fracture to the left orbit roof, lateral and medial walls and floor.

(3)Comminuted fractures involving the right frontal bone and squamous temporal bones.

(4)Comminuted fractures involving both the anterior and posterior walls of both maxilla antra and fractures involving the roots of the pteyroid process bilaterally.

(5)Multiple base of skull fractures and fractures of the spheroid body and also the floor of the anterior crania fossa overlaying the posterior ethmoid air cell.

(6)Comminuted fracture involving the nasal bones and a fracture of the hard palate and fracture of the right zygomatic arch.

(7)Extensive soft tissue swelling of the face, especially the right temporal region.

(8)A mobile palate.

(9)A lacerated tongue.

(10)A sharp wound of his right submandibular area, lacerating his facial vessels.

(11)Two transverse sharp lacerations to his right ear.

(12)Underlying the right frontal fracture, an extradural hematoma measuring seven millimetres in depth which was quite extensive and extended from the vertex an overlaying nearly the complete left frontal lobe and an overlying subgaleal haematoma measuring 1.4 centimetres in depth. Underlying the right temporal fractures there was an extradural or subdural hematoma measuring six millimetres in depth, overlying the temporal lobe.

(13)Multiple left frontal contusion, the largest measuring 11.4 centimetres by 1 centimetre axially, small right temporal contusions measuring six millimetres by five millimetres axially, multiple small right frontal contusion laterally, the largest measure seven millimetres by four millimetres and a small right frontal contusion anteriorly measuring four millimetres by four millimetres axially, with a midline shift to the right, of two millimetres, the bale cisterns were patent.

(14)A fracture of the angle of mandible on the right.

1. The victim was an Irish national who had obtained permanent residency in Australia. After the attack he returned to Ireland. He is completely dependent on his family and the Irish medical system. He is not capable of independent living and needs 24 hours a day supervision. He cannot socialise on his own, play sport or work. A victim impact statement written by his sister was tendered to his Honour. It describes her brother's mental condition as he struggles with his rehabilitation and trying to understand how this event could have happened. His Honour referred to the attack as having "changed the course of the victim's life from that of a successful and independent young man into a dependent person who is confined to a wheelchair."

The section 95 offence

1. At about 7.40pm on 18 August 2008 the victim of the s 95 offence, an international student, was walking along Belmore Road near Riverwood Railway Station. The applicant approached from behind and hit him in the back of the head. The force of the blow caused the victim to fall to the ground. The applicant continued punching the victim to the point he was rendered unconscious.

1. The applicant stole the victim's backpack which contained a digital camera, a new iPod and an electronic dictionary. He also took the victim's mobile phone. The applicant used the SIM card from the phone to make a number of calls.

1. A short time after the attack the victim regained consciousness. Later he was taken to the hospital where he received two stitches to the back of his head. Two statements from the victim were tendered by consent before his Honour. In one of the statements, he said he received a broken collar bone. In the other he referred to suffering a facture in his shoulder. Nothing turns on the difference in those descriptions, if in substance there is any.

1. On 16 September 2008 the applicant attended Bankstown police station. He participated in an interview with detectives. He denied involvement in the s 95 offence. However he entered a plea of guilty very soon after he was charged.

Sentencing judgment

1. His Honour set out the circumstances of each offence in a manner consistent with the above description. It is necessary to note eight additional points about his Honour's judgment.

1. First, in respect of the s 98 offence, his Honour found that the offence was aggravated by the harm suffered by the victim (s 21A(2)(g)) of the Sentencing Procedure Act.

1. Second, his Honour concluded that the s 98 offence was in the "category of high seriousness" having regard to the premeditation involved, the random selection of a victim, the "extremely high degree of violence" and the injuries suffered by the victim.

1. Third, his Honour found that the s 95 offence lay above "the mid-range of objective seriousness for the offence". His Honour noted a number of similarities between the s 95 and s 98 offence: they both occurred in darkness; they both involved the offender approaching a random person from behind and striking them viciously to the head causing them to fall to the ground, both victims were punched while on the ground and rendered unconscious; and their property was taken.

1. Neither party to this appeal suggested that there was an error on his Honour's part in either engaging in the process of characterising the seriousness of the offences or in the conclusions his Honour reached via that process (cf R v Koloamatangi [2011] NSWCCA 288 at [19], per Basten JA).

1. Fourth, in respect of both offences his Honour found that the applicant was entitled to a discount of 25% for the utilitarian benefit of each plea and a further 5% discount for the s 98 offence because of the assistance he provided in identifying his co-offender.

1. Fifth, before his Honour, the applicant contended that his intellectual functioning was impaired. A report was tendered from a psychologist, Ms Emma Collins. Ms Collins stated that his intellectual functioning placed him in the extreme low to borderline range of ability, "performing better than the bottom one per cent normative of the population". However his Honour noted, that with his adaptive functioning, he was found to have a score that placed him in the "average to above average range". His Honour found that the applicant's low IQ was not of any significance to the offences.

1. Sixth, his Honour identified the other subjective features of the applicant's case. At the time of the commission of the offence he was 19 years old. He had no previous convictions. He was reported as having a "happy childhood". He left school at year 11. He was employed as a scaffolder. He had a history of multiple substance abuse and a pattern of binge drinking. Although the applicant had written a letter to Mr Keohane's family expressing regret, his Honour was dismissive of his efforts. His Honour found that it had come at "a late stage insofar as the s 98 offence is concerned" and that he had no remorse in the immediate period after committing the offence, because he committed the s 95 offence nine days later.

1. Seventh, in relation to the s 95 offence his Honour referred to the "sentencing principle of the protection of the public". I address this further below.

1. Eighth, his Honour made a finding of special circumstances having regard to the applicant's youth, the need to partially accumulate the sentences and that it was his first time in custody.

Grounds of appeal

1. Ground 1 of the appeal contended that the sentencing judge failed to consider the principle of totality when fixing a start date for the s 95 offence. His Honour did not expressly refer to this principle in the sentencing judgment. However, his Honour must have had regard to it as that was the only basis upon which his Honour could have made the sentence for the s 95 offence partly concurrent with the sentence for the s 98 offence. Thus, as formulated, this ground could not be made out as the totality principle was applied. In argument this ground was refined to a contention that His Honour failed to properly apply the totality principle.

1. Ground 2 of the appeal contended that the sentence imposed for the s 95 offence was manifestly excessive. I will address this ground first as a misapplication of the totality principle need only be addressed if I first concluded that no error was established with each of the sentences that were imposed (Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [45]).

1. It was submitted on behalf of the applicant that given his age, his intellectual disability, the fact that he had no prior criminal convictions and the objective seriousness of the s 95 offence, the penalty imposed was manifestly excessive. The applicant relied on statistics maintained by the Judicial Commission of penalties imposed for s 95 offences. They demonstrate that from a sample of penalties imposed for 306 offences under s 95, 249 were full time custodial sentences. Out of that 249, a total or "head" sentence of over 6 years was imposed in 10% of cases and the highest sentence imposed was 9 years. The number of offences which had resulted in a fixed term or non-parole period was 187. The range of minimum custodial sentences imposed was from 6 months to 5 years with only one case reaching the latter figure. As I have stated, the applicant was sentenced to an overall term of 11 years with a non-parole period of 6 years.

1. The applicant also provided a brief précis of a number of cases decided by this Court concerning s 95. The Crown pointed to the limited utility of those decisions in assessing whether a particular sentence was manifestly excessive given their differing circumstances. Both parties referred the Court to the discussion in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53] to [56] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) concerning the utility of, and limitations upon, relying on records of sentencing outcomes in other cases. Part of that discussion included a restatement of the following passage from Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [59]:

"Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." (emphasis in original)

1. To resolve the appeal it is not possible, nor necessary, for me to interrogate the statistics and the table provided, beyond observing that the absence of any total sentence above 9 years suggests that, at the very least, the occurrence of any offence which can be categorised at the high end of seriousness for this offence is very rare.

1. In considering the sentence for the s 95 offence it is necessary to place the s 98 offence in context. There is no challenge by either party to the sentence imposed for that offence. Neither the question of the appropriate sentence for the s 95 offence or the appropriate level of cumulation can be approached on the basis that the applicant deserved a greater sentence for the s 98 offence. Equally it is not appropriate to engage in a process of comparing and contrasting the injuries inflicted on the two victims with a view to drawing some conclusion that the s 95 offences was not particularly serious when compared with the circumstances of s 98 offence.

1. The facts and circumstances of the s 98 offence had some significance to the s 95 offence. They confirm that the applicant was not a person of prior good character at the time he committed the s 95 offence. They undermine any claims that the applicant may have had to being remorseful. He was not affected by remorse from the appalling injuries he inflicted on the victim of the s 98 offence when he committed the s 95 offence. There is no credible evidence to the effect that he felt any different after he committed the s 95 offence. More significantly they confirm that the s 95 offence was not an isolated incident but instead was part of a particularly vicious and ruthless course of conduct. The close proximity in time of the two offences prompted his Honour to state:

"A matter of great concern to me in sentencing the offender is the fact that the s 95 offence, committed against victim two, was committed some nine days after the offender perpetrated the vicious attack on David Keohane. That being the case, in sentencing the offender for the s 95 offence I will have special regard to the sentencing principle of the protection of the public."

1. This aspect of his Honour's reasoning invokes the following statement in Veen v The Queen [No 2] [No 2] [1998] HCA 14; (1988) 164 CLR 465 at 477 (per Mason CJ, Brennan, Dawson and Toohey JJ):

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties..."

1. I agree with his Honour that the circumstances of the s 95 offence were such that this principle could be invoked. However, it has its limits. A sentence cannot be increased beyond what is proportionate to the crime in order "merely to extend the period of protection of society from the risk of recidivism on the part of the offender" (Veen [No 2] at 472; see also Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [60]).

1. Even allowing for the need for the protection of the public, the extent to which the s 98 offence illuminated the applicant's moral culpability in relation to the s 95 offence and demonstrated the applicant's "dangerous propensity", I consider that the sentence imposed was manifestly excessive.

1. The starting point for the sentencing for the s 95 offence was the maximum penalty of 20 years imprisonment. There was no standard non-parole period. Before allowance for the 25% discount that followed from his plea, the sentence imposed on the applicant was 14.67 years. Such a sentence does not sit comfortably with his Honour's characterisation of the offence as "above the mid-range of seriousness". It is a sentence commensurate with it being characterised at the high end.

1. This disconformity only became stronger when one considers the applicant's subjective circumstances. While his subjective case was substantially damaged for the reasons I have outlined, it still had some force by virtue of his youth and employment history with some allowance for his reduced level of intellectual functioning. The result is that the commencing point for sentencing of nearly 15 years for an offence with a maximum penalty of 20 years was too high. His Honour's invocation of the need to protect the public could not justify a penalty at that level when one places that principle in the context provided by Veen [No. 2].

1. I have reached the conclusion that the sentence was excessive without regard to the sentencing statistics. I had already referred to their limited utility. In a sense the statistics reflect and confirm the outcome of the above analysis. They reflect the rarity of offences being categorised at the hight end of seriousness for this offence. The applicant's sentence for the s 98 offence reflects that approach. Prior to any discount for his plea and assistance, his sentence for that offence was 21½ years out of a maximum of 25 years. The circumstances of that offence clearly warranted his Honour's finding that it was in the "category of high seriousness".

1. The applicant contended that some guidance for the appropriate sentence in his case is to be found in the guideline judgment of R v Henry [1999] NSWCCA 111 (1999); 46 NSWLR 346. Henry concerned offences under s 97 of the Crimes Act. In Henry at [162] Spigelman CJ identified a category of case by reference to seven criteria. This category of case was found to be "sufficiently common" to warrant the determination of a sentencing guideline. In Henry at [165] his Honour found that "sentences for an offence of the character identified above should generally fall between four and five years for the full term". This range reflected a discount of 10% for a late plea. When adjusted for a 25% discount for a plea of guilty, the range became one of 3 years to 3 years and 9 months (R v Kelly [2010] NSWCCA 259 at [52] per Kirby J).

1. Henry provides little guidance to this case. Criteria (vii) in Henry was that the offence involved "limited, if any, actual violence but a real threat thereof". The use of actual and serious violence was the applicant's modus operandi. It was put into effect with the s 95 offence.

1. In my view, it is appropriate to re-sentence the applicant for the s 95 offence to an overall sentence of 8 years with a 4 year non-parole period. This involves a sentence of between 10 and 11 years, prior to any discount for his plea. It reflects his Honour's characterisation of the offence, the subjective case (albeit damaged) and the need to protect the public. An alteration of the standard proportion between the non-parole period and the balance of term is necessary as this sentence will be partly concurrent with and partly cumulative upon the sentence for the s 98 offence.

1. In light of the conclusion concerning ground 2, it is not necessary to consider ground 1 of the appeal. Instead this Court must independently fix a starting date for the offence and it must reflect the Court's assessment as to the totality of his criminality. In my view a total period of imprisonment of 12 years is appropriate. The applicant's offences were very serious. However, his youth and the fact that he has not been incarcerated previously reflects a need for some amelioration of the combined effect of the two sentences. The sentence imposed still means that he will spend at least the 12 years from age 19 to age 31 in full time custody. They are a critical part of his adult life.

1. The orders I propose are:

(1)Leave to appeal be granted.

(2)Appeal allowed in part.

(3)Set aside the sentence imposed by the District Court on 26 May 2010 for the offence under s 95 of the Crimes Act 1900 committed on 18 August 2008 and, in lieu thereof, for that offence sentence the applicant to a non-parole period of 4 years commencing 16 September 2016 and expiring on 15 September 2020 with a balance of term of 4 years commencing 16 September 2020 and expiring on 15 September 2024.

1. These orders leave undisturbed the sentence imposed for the s 98 offence. The combined effect of these orders and his Honour's sentence for the s 98 offence is that the applicant will serve a non-parole period of 12 years from 16 September 2008 to 15 September 2020 with a balance of term of 4 years from 16 September 2020 to 15 September 2024.

**********

Decision last updated: 08 June 2012