Joseph Sefo v The Queen
[2017] VSCA 336
•17 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 002
| JOSEPH SEFO | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2017 067
| ANTONE ALAGAELUA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 October 2017 |
| DATE OF JUDGMENT: | 17 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 336 |
| JUDGMENT APPEALED FROM: | DPP v Alagaelua & Ors [2016] VCC 1926 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Robbery – Intentionally Causing Serious Injury – Intentionally Causing Injury – Specific error alleged - Whether parity principle infringed – Identical sentences imposed on three co-offenders - Appeal dismissed.
CRIMINAL LAW – Application for leave to appeal – Sentence – Robbery – Intentionally Causing Serious Injury – Intentionally Causing Injury – Whether parity principle infringed – Identical sentences imposed on three co-offenders – Application for leave granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant, Joseph Sefo | Mr R Edney | Doogue and George |
For the Applicant, Antone Alagaelua | Mr J Gullaci | C. Marshall & Associates |
| For the Crown | Mr M D Phillips | Office of Public Prosecutions |
KAYE JA
BEALE AJA:
Summary of conclusions
In these proceedings, two co-offenders, Anetone Alagaelua[1] and Joseph Sefo,[2] submit that the learned sentencing judge misapplied the parity principle by imposing sentences on each of them which were identical with the sentence imposed on a third co-offender, Ulete Pulega.[3]
[1]Alagaelua seeks leave to appeal.
[2]Sefo was granted leave to appeal by Ashley JA on 26 April 2017.
[3]Pulega has not appealed his sentence.
Alagaelua, Sefo and Pulega each pleaded guilty to six offences arising from two violent incidents which occurred about half an hour apart on 15 May 2016. They pleaded guilty on the basis that they were parties to an agreement to commit the relevant offences.[4] In relation to the first incident, where the victim was Callum Volf, each offender pleaded guilty to intentionally causing serious injury and robbery. In relation to the second incident, where there were two victims, the brothers William and Frederick McKinlay, each offender pleaded guilty to two counts of intentionally causing injury and two counts of robbery.
[4]See s 323(1)(c) and s 324 of the Crimes Act 1958.
As conceded by Alagaelua and Sefo, the issue in these proceedings is whether the sentencing judge in applying the parity principle was obliged to differentiate between the sentence he imposed on them and the sentence imposed on Pulega. They each relied on positive aspects of their personal circumstances — especially their absence of prior convictions and their good prospects of rehabilitation — for the submission that they should have received lesser sentences than Pulega whose personal circumstances were not positive.
We have concluded, for the reasons set out below, that there were matters in Pulega’s favour — especially his lesser role in the offending and his cognitive deficits — which counterbalanced the matters relied on by Alagaelua and Sefo. Whilst it may have been open to the sentencing judge to differentiate in the sentences he passed, we are not persuaded that he was obliged to do so in giving effect to the parity principle.
Accordingly, we would grant Alagaelua leave to appeal but dismiss both his and Sefo’s appeals.
Sentences imposed
The details of the sentences imposed on Alagaelua, Sefo and Pulega are set out in the following table:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Intentionally causing serious injury [Crimes Act 1958 s 16] 20 years’ imprisonment [Crimes Act 1958 s 16] 4y Base 2 Robbery [Crimes Act 1958 s 75(1)] 15 years’ imprisonment [Crimes Act 1958 s 75(2)] 12m 1m 3 Intentional causing injury [Crimes Act 1958 s 18] 10 years’ imprisonment [Crimes Act 1958 s 18] 2y 5m 4 Robbery [Crimes Act 1958 s 75(1)] 15 years’ imprisonment [Crimes Act 1958 s 75(2)] 12m 1m 5 Intentionally causing injury [Crimes Act 1958 s 18] 10 years’ imprisonment [Crimes Act 1958 s 18] 2y 4m 6 Robbery [Crimes Act 1958 s 75(1)] 15 years’ imprisonment [Crimes Act 1958 s 75(2)] 12m 1m Total Effective Sentence: 5y Non-Parole Period: 3y Pre-sentence Detention Declared: 78 days – Sefo
203 days – Alagaelua
204 days – PulegaAlagaelua 6AAA Statement: 6y, with a non-parole period of 4y Other orders: N/A Grounds
Both Alagaelua’s proposed ground of appeal and Sefo’s ground of appeal are substantively the same — they allege the sentencing judge erred in imposing on each of them a sentence identical to that imposed on Pulega.
Circumstances of offending
There was an agreed summary of facts that was tendered at the plea hearing. The main points of that summary are as follows.
On Saturday 14 May 2016 at approximately 8pm, Alagaelua, Sefo and Pulega attended a party for their rugby team. Sefo’s brother, Sala, accompanied them.
Alagaelua only had a few drinks at the party as he was driving. Sefo had several drinks and felt drunk, though not to a significant degree. Pulega drank more than ten pre-mixed cans of spirits and some ‘shots’ and felt drunk.
They all left the party after midnight in Alagaelua’s car. They discussed ‘doing something stupid’ and decided on driving to the Pure nightclub in Melton and hitting someone and taking their phone.
Alagaelua parked near the nightclub and they got out. Sala remained in the car. Initially they waited for approximately 15 minutes about 100 metres from the entrance to the nightclub but then they moved to a dimly lit alleyway near the nightclub.
At this time, Volf, aged 18, and a friend came out of the nightclub. They walked down the alleyway to go to an ATM. The offenders, who were in the middle of the alleyway with hoodies over their heads, let them pass without saying anything.
After using the ATM, Volf’s friend suggested they go back to the nightclub the long way — which he did — but Volf went back through the alleyway alone. By this time, Alagaelua and Sefo were on one side of the alleyway, Pulega on the other, all with their hoods drawn. Alagaelua said ‘this is the dude’ and Sefo then punched Volf to the right side of his jaw, causing him to fall. Volf looked up and apologised (sic) whereupon Alagaelua kicked him in the head, rendering him unconscious. Alagaelua later told police that he wanted to put Volf ‘to sleep’ so he would not be able to recognise them. The offenders took Volf’s phone and wallet and went back to the car.
Shortly after, Volf was found lying face down in a pool of blood, unconscious. He was taken to hospital. His injuries included two nasal fractures, two fractures to his jaw and a fractured eye socket. A titanium plate and screws were inserted in his face.
About half an hour after the attack on Volf, the offenders and Sala were driving along Exford Road, Melton. They saw two males, William and Frederick McKinley, walking along the footpath. They pulled over just ahead of them. All three offenders got out of the car but Sala drove off. As the two males walked past them, Alagaelua asked them for a cigarette. William produced three cigarettes and a lighter. Alagaelua asked what they were doing and William said he was just trying to get his brother Frederick home: Frederick was heavily intoxicated from celebrating his 30th birthday. Alagaelua suddenly punched William to the right side of his head, causing him to stumble forward. Frederick jumped on Alagaelua in defence of his brother. All three offenders then pulled Frederick to the ground, punched him and dragged him onto the nature strip.
William yelled out to distract them. Sefo continued hitting Frederick, who eventually lost consciousness, while Alagaelua and Pulega went over to William and punched him to the head and shoulder causing him to fall over. They continued hitting him and one kicked him in the ribs. One of the offenders took William’s mobile phone from his pocket. Alagaelua then said ‘what else have you got, give it to me now, take it out of your pockets’. William handed over a cigarette packet and lighter. The offenders took off, returning to Alagaelua’s car which was parked nearby.
As well as losing consciousness, Frederick suffered bruised ribs, scratches on his arms and soreness under his arm, a sore knee and a tender jaw and face. William had swelling on right side of his face, bruising under one eye and was diagnosed with concussion. He suffered ongoing headaches and dizziness.
On 19 May 2016, Pulega and Sefo were arrested and, the next day, Alagaelua was arrested.
In Alagaelua’s police interview, he claimed that the others came up with the idea of doing ‘something fun’ and he went along with it. In relation to the first incident, he admitted that he kicked Volf to put him ‘to sleep’. In relation to the second incident, he claimed that they all started punching William at the same time.
In Sefo’s police interview, he said that Alagaelua suggested doing ‘something stupid’ and they went along with it. He said Alagaelua wanted a new phone. In relation to the first incident, he said Alagaelua said ‘this is the dude’ and he, Sefo, punched him first. After Volf said sorry, he stood back and Alagaelua kicked him. In relation to the second incident, he said it was Alagaelua’s idea to attack the two males. He said Alagaelua threw the first punch at William and that he jumped in when Frederick came to William’s assistance.
In Pulega’s police interview, he said, initially, that there was no plan but later he said that, because he was drunk, he wasn’t sure if there were discussions about what was going to happen. In relation to the first incident, he said that whilst they were waiting in the alleyway, Alagaelua spoke about putting someone ‘down’ and they talked about bashing someone. He eventually said that Sefo punched Volf and Alagaelua kicked him. He didn’t hit Volf but he grabbed his wallet. In relation to the second incident, he said he joined in after Alagaelua hit William and Frederick got involved. He said he punched Frederick in the stomach.
Circumstances of the offenders
As far as the personal circumstances of the offenders are concerned, points of difference consisted of their age, cognitive development, antecedents, prospects of rehabilitation, possibility of deportation and isolation in prison.
Age
Alagaelua and Sefo were both aged 21 and Pulega was 28 at the time of the offending.
The sentencing judge in his Reasons noted ‘the youthfulness of each [offender] but in particular of Alagaelua and Sefo’.[5] However, he observed appropriately[6] that the weight to be attached to youthfulness was reduced by the objective gravity of the offending.[7]
[5]DPP v Alaguelua & Ors [2016] VCC 1926, [33] (‘Reasons’).
[6]Azzopardi v The Queen (2011) 35 VR 43, (‘Azzopardi’)
[7]Reasons [36] and [48].
Cognitive development
It was not suggested on the plea hearing that Alagaelua’s cognitive development was in any way compromised.
A forensic psychologist Dr Aaron Cunningham produced a report on Sefo, whose Full Scale IQ was assessed as 77. Dr Cunningham stated that Sefo’s ‘overall thinking and reasoning were in the Borderline range’. Nonetheless, Sefo had successfully completed the equivalent of Year 12 at De La Salle College in Auckland. He had also gone onto TAFE and for a time studied social services, completing levels 1 to 4.
A neuropsychologist, Dr Lindsay Vowels, produced two reports on Pulega. Pulega’s developmental immaturity was a theme of those reports. Dr Vowels administered formal testing. Verbal communication was difficult, even with the assistance of a professional Samoan interpreter, and, as a consequence, Pulega’s Full Scale IQ was not calculated by Dr Vowels but he stated in his first report that Pulega’s ‘longstanding intellectual abilities are likely to be in the Borderline to Extremely Low range’. He concluded that Pulega ‘probably’ has an intellectual disability. In his second report, he stated ‘[m]y clinical observations and test results all demonstrated the signs and symptoms of Mr Pulega’s extremely low intelligence and impaired cognitive function in nearly all areas of abilities’. Unlike Sefo who successfully completed Year 12, Dr Vowells noted in his first report on Pulega that school was ‘very difficult for him and he left school fairly soon’.
Whilst expressing some dissatisfaction with Dr Vowels reports, the sentencing judge stated in his Reasons that:
I accept there are compromised mental processes and cognitive impairments which affect your behaviour. In this framework, I am prepared to accept your moral culpability may be slightly reduced by this.[8]
[8]Reasons [74].
Antecedents
Alagaelua and Sefo have no prior convictions but Pulega does. Relevantly, Pulega was fined for an unlawful assault in 2013. In 2015, he received a sentence of 28 days imprisonment, wholly suspended for 9 months, in relation to criminal damage and another unlawful assault. In 2014, Pulega was placed on Community Corrections Order for driving offences. He breached that by the 2015 offences and, for that breach, was, amongst other things, ordered to undergo assessment for alcohol abuse and to attend an offending behaviour program.[9]
[9]We note that Pulega had not previously been convicted of causing injury nor had he received a sentence of immediate imprisonment. His antecedents also had to be viewed through the prism of his cognitive deficits.
Prospects of rehabilitation
The sentencing judge said Alagaelua’s absence of prior convictions bore positively on his prospects of rehabilitation[10] but he did not ultimately express a concluded view regarding those prospects. In relation to Sefo, who had engaged positively in drug and alcohol and anger management counselling whilst on bail for the current offending, the sentencing judge said that his prospects were ‘probably good’.[11] In relation to Pulega, the sentencing judge stated:
[10]Reasons [40].
[11]Reasons [61].
Your 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.’[12]
[12]Reasons [65].
The sentencing judge was also understandably troubled by Pulega’s lack of empathy and moral reasoning, which flowed from his cognitive deficits.
Possibility of deportation
All three offenders are Samoans by birth. Only Pulega has Australian citizenship. Alagaelua and Sefo are New Zealand citizens who may be deported at the completion of their sentences. The sentencing judge took account of that possibility in their favour in two respects — first, their awareness of that possibility would increase the burden of imprisonment on them and, second, that they may lose the opportunity of permanent settlement in Australia.[13]
[13]Ibid [46] and [55].
Isolation in prison
The sentencing judge accepted that Pulega’s English was poor and ‘that this will affect your incarceration, rendering it somewhat more isolating than usual.’[14]
[14]Ibid [67].
Summary of counsel’s submissions
Counsel for Alagaelua submitted that because he was only 21 at the time of the offending, had no priors convictions and good prospects of rehabilitation and faced the possibility of deportation at the completion of his sentence, he should have received a lesser sentence than Pulega who was 28 at the time of offending, had prior convictions (including two prior convictions for assault) and had poor prospects of rehabilitation.
Counsel for Alagaelua conceded that this Court was not obliged to ignore the roles performed by each offender in determining whether the sentencing judge erred regarding parity but submitted that differences in roles did not justify equal sentences. As for Pulega’s intellectual deficits, Alagaelua relied on the fact that the sentencing judge found that they only slightly reduced Pulega’s moral culpability but compounded the risk of Pulega re-offending.
Counsel for Sefo submitted that to differentiate between the offenders based on role would be to draw ‘fine distinctions’ and be inconsistent with how the case was run before the sentencing judge. He submitted that, in determining whether the sentencing judge fell into specific sentencing error, this Court should work on the basis that ‘roles were equal.’ We could only have regard to differences in roles, it was submitted, if we found sentencing error, and turned to consider whether a different sentence should be passed.
Counsel for Sefo submitted that his client could rely on several mitigatory circumstances which Pulega could not. Sefo was only 21 at the time of the offending, he had no prior convictions, the sentencing judge found he ‘probably’ had good prospects of rehabilitation and gaol was likely to be more burdensome for him because, like Alagaelua, he was at risk of deportation upon completion of his sentence.
Counsel for the Respondent submitted that, although the sentencing judge did not expressly rely on differences in roles to justify the imposition of identical sentences, his Reasons, reflecting the agreed summary of facts, set out the respective roles of the three offenders in some detail. In those circumstances, this Court was not precluded from having regard to differences in their respective roles in considering whether identical sentences were open to the sentencing judge, who expressly stated that he had turned his mind to the issue of parity. The sentencing judge said he had ‘considered principles of parity, and [was] of the view that each…should be sentenced to the same sentence.’[15]
[15]Reasons [81].
Counsel for the Respondent, relying on Romero,[16] submitted that, before the sentencing judge, it was incumbent on Alagaelua and Sefo to expressly raise parity if they wished to argue for a lesser sentence than Pulega but they had failed to do so.
[16]Romero v The Queen (2011) 32 VR 486, 489–90.
In response, counsel for Alagaelua submitted in response that his failure to expressly argue disparity could not be determinative in circumstances where the sentencing judge was sentencing three co-offenders and necessarily had to consider parity.
Analysis
As we stated recently in Robinson & Robinson:
The principle of parity of sentence is based on the concept that equal justice requires that, all things being equal, like offenders should be treated in the same way, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them that are relevant to their sentences, should be properly accommodated in the sentencing synthesis.[17] [emphasis added]
[17][2017] VSCA 304 at [97].
The agreed summary of facts set out the respective roles of the offenders. In his Reasons, the sentencing judge carefully detailed the roles each played. It is plain from his summary of the facts that Alagaelua and Sefo played the leading roles in relation to the first incident, which was the most serious. Pulega was complicit in their actions during that first incident but he did not strike Volf in any way.
In relation to the second incident, Pulega joined in the physical assault but again, the sentencing judge’s reasons indicate that Alagaelua played a leading role and Sefo perpetrated a sustained assault on Frederick, who was heavily intoxicated and the least capable of defending himself. On the agreed summary of facts, Frederick was ultimately rendered unconscious.
Thus, to proceed on the basis that the offender’s roles were equal, and that they were therefore equally culpable, would be to proceed on a fiction. There is no unfairness to Alagaelua and Sefo in rejecting such a course. Nor is a consideration of roles in assessing culpability to engage in fine distinctions.
It is true that apart from highlighting the fact that Alagaelua kicked Volf in the head with the intention of rendering him unconscious, the prosecutor at the plea hearing did not seek to differentiate between the offenders based on roles. It is also true that the sentencing judge did not refer expressly to differences in their respective roles as a reason for imposing equal sentences. But it should not be supposed that the sentencing judge ignored differences in roles, when the differences were so stark, particularly in relation to the first and most serious incident. In addition, as mentioned, the judge concluded that, as a result of his compromised mental processes and cognitive impairments, the moral culpability of Pulega for his offending was slightly reduced.
In that regard, counsel for Alagaelua rightly conceded that this Court was not obliged to ignore the roles performed by each offender in determining whether the sentencing judge erred regarding parity.[18]
[18]Appeal Transcript, 7.
The offending engaged in by Alagaelua, Sefo and Pulega was particularly serious. On the evening in question they set out with the deliberate plan of assaulting and robbing one or more persons who they might come across in the Melton district. In pursuance of that plan they twice engaged in violent, gratuitous and unprovoked assaults on members of the public. As a consequence, Volf was seriously injured, Frederick McKinley was rendered unconscious, and William McKinley was also injured. It is well established that, in cases such as this, the principal of general deterrence is given particular prominence, thus reducing the weight to be given to personal mitigating circumstances of the offender, such as the youth and lack of previous convictions of the offender in question.[19] Thus, the fact that Sefo and Alagaelua were each seven years younger than Pulega, and that, unlike Pulega, they did not have previous convictions, weighed less in their favour as a point of differentiation between them and Pulega for the purposes of determining the sentences to be imposed on each of them. On the other hand, in the case of an offender whose cognitive and mental processes have been diminished, such as Pulega, the weight ordinarily to be given to general deterrence was to some extent moderated.[20]
[19]Azzopardi, [44]; R v Lawrence (2004) 10 VR 125, 132 [22].
[20]R v Anderson [1981] VR 155, 159–61 (Young CJ, Jenkinson J); R v Yaldiz [1998] 2 VR 376, 381 (Batt JA).
Thus, taking into account the roles of Pulega, Sefo and Alagaelua in each of the offences and the importance of general deterrence in the circumstances of the case, and having regard to the effect of the relevance of Pulega’s significant cognitive deficits to the determination of his sentence, we are not persuaded that the differences between the personal circumstances, on the one hand, of Pulega, and, on the other hand, of Sefo and Alagaelua, were such that the sentencing judge was bound to impose a less serious sentence on each of Sefo and Alagaelua than he imposed on Pulega. In the circumstances of this case, we reject the submission that it was not open to the sentencing judge to impose identical sentences on each of the three offenders.
Accordingly, for the foregoing reasons, we would grant Alagaelua leave to appeal, but dismiss the appeal by both Alagaelua and Sefo.
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