Kalepo v The Queen
[2016] VSCA 220
•14 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0123
| SAMUEL KALEPO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2016 |
| DATE OF JUDGMENT: | 14 September 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 220 |
| JUDGMENT APPEALED FROM: | DPP v Kalepo [2016] VCC 477 (Judge Hampel) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant pleaded guilty to recklessly causing serious injury and to two charges of failing to answer bail – Sentenced to 4 years’ imprisonment on charge 1 and 2 months’ imprisonment cumulative on charges 2 and 3 – Unprovoked attack upon victim – Two punches to the face resulting in permanent injury and ongoing psychological effects – Relevance of rehabilitation for young offender – Prospect of deportation – Judge concluded that applicant not suitable for Community Correction Order by reason of past failure to comply with Court orders – Sentence within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J R Cass | Victoria Legal Aid |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
OSBORN JA:
In April of this year, the applicant pleaded guilty in the County Court at Melbourne to a charge of recklessly causing serious injury (charge 1) and two charges of failing to answer bail (charges 2 and 3). He was sentenced to 4 years’ imprisonment on charge 1, and to one month cumulative on each of charges 2 and 3. The total effective sentence was four years and two months. A non-parole period of two years and two months was fixed.
The maximum penalty for recklessly causing serious injury, contrary to s 17 of the Crimes Act 1958, is 15 years’ imprisonment. The maximum penalty for failure to answer bail, contrary to s 30(1) of the Bail Act 1977, is 12 months’ imprisonment.
The applicant now seeks leave to appeal against that sentence upon the following grounds:
1.The individual sentence on Charge 1, the total sentence from the orders of cumulation, along with the non-parole period imposed on the applicant are each manifestly excessive. In particular,
(a) in light of factors put in mitigation, the sentence demonstrates inadequate weight was given to the Applicant's rehabilitation, and undue weight was placed on general deterrence, punishment and denunciation;
(b) the sentence demonstrates that inadequate weight was given to the extra burden of imprisonment the Applicant will experience due to his personal circumstances and his knowledge of his likely deportation;
(c) in light of the objective seriousness of the offending and current sentencing practices for comparable offending.
2.The learned Sentencing Judge erred in her assessment that the Applicant was unsuitable for a CCO combined with a term of imprisonment in circumstances where such an order was proportional to the gravity of the offending. In doing so the sentence breached the principle of parsimony.
Circumstances surrounding the offending
On 27 October 2012, the applicant and two friends attended a shopping centre in Mill Park. His group crossed paths with another group, consisting of two males, one of whom was the victim, and a female who was previously known to the applicant. There was some interaction between them. At one point the applicant’s friends were laughing at the female as they looked in her direction. That led the victim to approach the applicant. They were at that stage about 10 metres apart. The victim asked the applicant if he had a problem with the female.
The applicant then advanced toward the victim, grabbed him by the collar and punched him, with his right fist, forcefully twice to the left side of his face. The victim fell to the ground and hit his head on the concrete footpath. The applicant and his friends then fled.
The victim lay on the ground unconscious. Paramedics arrived and stabilised him at the scene. Even at that stage, his jaw had started swelling. He was taken to hospital where he was diagnosed with major concussion, and a displaced fracture of the jaw. He also suffered extensive bruising and quite extraordinary swelling to the left side of his face.
The victim remained in hospital for a week. He had a metal plate inserted into his jaw. Even some three years later, he continues to suffer considerable residual physical symptoms as a result of the injury. This includes nerve damage resulting in ongoing numbness and pain. He has, as a result, difficulty in chewing and is unable to eat certain solid foods. The plate will remain in his jaw permanently.
The victim also suffers residual psychological damage, including anxiety and depression. He is prone to outbursts of anger. He finds it difficult to go out in public and cannot continue to play cricket or engage in other sporting activities. He is in constant fear of sustaining further injury to his jaw. He is also fearful of people of Islander appearance.
As indicated, the applicant was sentenced some three and a half years after the offending took place. That lengthy delay was largely brought about by the applicant’s failure to comply with his conditions of bail, and his refusal to attend court when required.
During the course of the plea, the sentencing judge was invited to impose a relatively short term of imprisonment, less than 12 months, together with a lengthy Community Correction Order (‘CCO’). Not surprisingly, she rejected that submission. She said:
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.
In arriving at that conclusion, her Honour took into account the applicant’s history of failing to attend court in relation to the present proceedings, together with a previous failure to answer bail, and his breach of a good behaviour bond as a result of present offending. She also took into account a breach of an intervention order.
The judge’s sentencing remarks
The sentencing judge described the circumstances surrounding the offence, and its objective gravity, in the following terms:
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.[1]
[1]DPP v Kalepo [2016] VCC 477 (Judge Hampel) (Reasons) [8]
Her Honour summarised the submissions advanced on behalf of the applicant as follows:
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.
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.[2]
[2]Reasons [10]–[11].
The applicant’s personal circumstances were then set out:
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.
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.[3]
[3]Reasons [13]–[14]
The sentencing judge then dealt with the question of delay:
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.
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.
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.
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.[4]
[4]Reasons [16]–[19].
Her Honour next dealt with the applicant’s youth:
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.[5]
[5]Reasons [24].
The sentencing judge then dealt with the likelihood of deportation after the expiry of the applicant’s term of imprisonment.
You are a New Zealand born man of Maori origin, who was brought to immediate family are here. I was told you have no contact with extended 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.
You have lived in Australia since then, and I was told that all of your 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.
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.
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.
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.[6]
[6]Reasons [29]–[33].
Finally, her Honour explained how she had arrived at the decision to impose the sentence that she considered appropriate.
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.[7]
The applicant’s submissions
[7]Reasons [36].
Ground 1(a)
It was submitted that the individual sentence of four years on charge 1, as well as the total effective sentence and the non-parole period were manifestly excessive. The applicant relied, in support of that submission, upon his age (20 at the time of the commission of the offence and 23 at the time of sentencing) as well as his limited criminal history. This particular offence was said to represent a sharp escalation in his offending trajectory, and was the first time that he had done anything that might have warranted a term of imprisonment. When interviewed by police a month or so after the incident, he made full admissions and indicated remorse for having caused injury to the victim. He was generally cooperative, and ultimately pleaded guilty.
The applicant relied upon R v Mills[8] in support of his contention that, by virtue of his youth alone, rehabilitation ought to have been the primary consideration when her Honour came to sentencing. It was submitted that rehabilitation should have been regarded as far more important in this case than general deterrence.
[8][1998] 4 VR 235 (‘Mills’). See also DPP v Anderson (2013) 228 A Crim R 128.
Although the sentencing judge had acknowledged the applicant’s youth, it was submitted that the sentence of four years’ imprisonment on charge 1 suggested that she had given little weight to that factor. Indeed she had referred to Azzopardi v The Queen,[9] where it was said that in some cases the gravity of the offending meant that rehabilitation had to give way to general deterrence and denunciation.
[9](2011) 35 VR 43.
It was submitted that the sentencing judge had given little or no weight to rehabilitation because she had erroneously confined the principles set out in Mills to situations where rehabilitation was already underway, or where the offender had demonstrated a commitment to such rehabilitation. Because the applicant had shown no such commitment, but had instead persistently flouted court orders, he was not entitled to leniency in accordance with the principles ordinarily governing sentencing of youthful offenders.
It was submitted that, merely because a young man had not taken steps to rehabilitate himself prior to the sentencing process, did not mean that he was not entitled to call in aid youth as a factor. The offending in this case was not of such gravity as to override the need to promote rehabilitation in relation to an offender whose prospects of such rehabilitation were said to be ‘fair’.
In further support of that submission it was noted that the applicant’s offending had involved a single, spontaneous incident. It was over in seconds, and did not involve the use of a weapon. It did not involve the infliction of violence upon a vulnerable person. Although it resulted in a serious injury, the applicant had expressed remorse, and should have been given considerable credit for that.
It was acknowledged that the applicant had committed further offences after the present offending, and prior to being sentenced for this assault. That was offending of a violent nature for which he was fined $2000, but without conviction.
Ground 1 (b)
It was submitted that the sentence demonstrated that inadequate weight had been given to the extra burden of imprisonment that the applicant would experience by reason of his personal circumstances, and his knowledge of his likely deportation. He had been born in New Zealand and had lived in this country since his family moved here in 1998. He was aged 6 at that stage.
The applicant is a permanent resident, but not a citizen. He has no contact with any family or friends in New Zealand. Two weeks’ prior to the offending his father died from cancer. Thereafter, the applicant took on a support role contributing financially to the running of the household. For two years prior to being taken into custody he had been employed as a concreter.
As indicated, the sentencing judge accepted that, in these circumstances, the prospect of deportation would increase the burden of imprisonment, and that this was a relevant factor to take into account. It was submitted that the sentence imposed suggested that her Honour had not done so, or had failed to give this matter appropriate weight.
Ground 1(c) – manifest excess
The applicant referred to a series of cases, all of which were said to be comparable in various ways, and all of them involving sentencing for recklessly causing serious injury.[10]
[10]See DPP v Marino [2011] VSCA 133 (RCSI 5 years); Ashdown v The Queen 2011] VSCA 408 (RCSI 3 ½ years); Ross v The Queen [2007] VSCA 213 (RCSI 2 ½ years); DPP v Russell [2014] VSCA 308 (RCSI 2 ½ years); R v Wyley [2009] VSCA 17 (RCSI 3 years); DPP v Wilkins [2009] VSCA 275 and DPP v Edwards [2012] VSCA 293 (RCSI 3 years and CCO).
It was submitted that the sentence of four years on charge 1 was the second highest of these comparable cases, and that this demonstrated that the sentence in this case was seriously out of kilter with current sentencing practice. It was noted that a number of these ‘like cases’ had aggravating features not present in the applicant’s case.
Ground 2
It was submitted that the sentencing judge had failed to apply the principle of parsimony when she rejected a CCO in combination with a term of imprisonment as a suitable disposition. It was noted that her Honour had not found specifically that a term of less than two years’ imprisonment, combined with a CCO, would be insufficient, given the gravity of the offending. Rather, she had simply concluded that he was unsuitable for a CCO altogether. She arrived at that conclusion despite his never having previously been placed on a CCO, and without his having been assessed for such a disposition by Corrections Victoria. She based this finding solely upon his failure to attend court in the lead-up to the plea hearing.
The respondent’s submissions
Ground 1(a)
The respondent submitted that the applicant’s reliance upon the general principles regarding sentencing of youthful offenders set out by Batt JA in R v Mills was misconceived. It was noted that these general principles were said ‘usually’ to apply, and the sentencing disposition to be tailored to rehabilitation ‘so far as possible consistently with other sentencing principles’. In other words, these were general propositions, but not of universal or automatic application. The extent of their application would depend upon the particular circumstances of the offence, and of the offender.
It was submitted that more recent authority[11] concerning offending involving young men engaged in violent offending, and particularly random street violence, demonstrated that the need for deterrence could serve to moderate the principles in Mills.
[11]See DPP v Lawrence [2004] VSCA 154; R v Wyley [2009] VSCA 17; Azzopardi v The Queen (2011) 35 VR 43; McGuigan v The Queen [2012] VSCA 121; and DPP v Russell [2014] VSCA 308.
In particular, the respondent relied upon DPP v Lawrence where Batt JA considered a 20 year old charged with intentionally causing serious injury involving serious and unprovoked public violence. His Honour there made clear that youth and rehabilitation must take a ‘backseat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness are involved. That is particularly so because offending of this nature, which is characteristic of youthful offenders, is so prevalent.
It was submitted that her Honour had approached the question of the applicant’s youth correctly, recognising that it required more weight to be given towards encouraging rehabilitation, but balancing that by noting that general deterrence and denunciation remained important sentencing considerations.
The respondent rejected the applicant’s submission that the sentencing judge had neutralised his youth on the basis that there was no evidence that his rehabilitation was ‘already underway’. Her Honour correctly found that there was a dearth of evidence, not only of rehabilitation underway, but of any demonstrated commitment to such a course. Rather, there was only ‘…positive evidence of persistent flouting of court orders…’.
Ground 1(b)
The respondent submitted that the sentencing judge gave careful consideration to the fact that the applicant faced the prospect of deportation after he had served his sentence, and moderated the sentence accordingly.
Ground 1 (c)
The respondent challenged the applicant’s reliance upon sentences imposed in supposedly comparable cases as the basis for his submission that this sentence was manifestly excessive. While current sentencing practice was, and is, a factor to be taken into account when sentencing, and tables of comparable cases can have a part to play in arriving at what might be thought to be an appropriate range, ultimately the task of sentencing must remain one of instinctive synthesis. Like cases can only, at best, provide a general guide or impression as to appropriate range. Any
closely detailed comparison may lead to a mathematical approach that is inimical to the task.[12]
[12]See DPP v Hudson (2010) 30 VR 610; Hasan v The Queen (2010) 31 VR 28; and DPP v Zhuang [2015] VSCA 96.
It was submitted that the comparable cases to which the applicant drew attention did not demonstrate that the sentence of four years’ imprisonment imposed in the present case fell outside the range objectively open to the sentencing judge given the gravity of the offence and the circumstances of the offender. The applicant’s history of disdain for the court process, and lack of respect for court orders, was unusually bad. Also of some importance was the subsequent violent offending that breached a family violence order and the failure to meet bail resulting in a lengthy delay in the current matter coming to fruition.
Ground 2
It was submitted that it was reasonably open to the sentencing judge to find that the imposition of a CCO would be inappropriate, and therefore to reject that as an option. That left her Honour to sentence the applicant to a term of imprisonment, and to fix a non-parole period.
Finally, it was submitted that the decision of this Court in Boulton should not be viewed as a ‘get out of jail free’ card in circumstances where a substantial term of imprisonment is necessary to satisfy proper sentencing objectives. The principle of parsimony, upon which the applicant relied, has long been recognised by the common law. The advent of Boulton and s 5(4C) of the Sentencing Act did not require her Honour to find that a CCO would have been the appropriate sanction.
Nor was the sentencing judge under an obligation to order a pre-sentence report so that she could ascertain whether the Department of Corrections considered the applicant suitable for a CCO. Such a report should only be obtained if the sentencing judge forms the view that the offender is an appropriate candidate for a CCO on all of the evidence before the Court. Her Honour did not, at any stage, form that view.
Conclusion
In our view, none of the grounds in support of the application for leave to appeal have been made out. No error has been identified, whether specific or otherwise. The total effective sentence of four years and two months, though perhaps stern, has not been shown to be wholly outside the range of sentences reasonably available, and therefore is not manifestly excessive. The non-parole period of two years and two months can fairly be described as moderate, and clearly within range.
For completeness we note that, as we have recorded above, the applicant submitted that the sentencing judge had misstated and confined the relevance of the concept of rehabilitation. This point was not pressed in oral argument before us. Moreover, a careful reading of the sentencing judge’s reasons indicates that she did not confine the potential relevance of rehabilitation as a sentencing consideration in the way the applicant submitted. Furthermore, the view that she took of the relative significance of this factor in the present case was entirely open to her.
As the respondent submits, it is also plain that the judge had due regard to the prospect of deportation as it affected the relative burden of imprisonment upon the applicant.
The cases to which the applicant has drawn attention do not demonstrate that the sentences imposed upon him were manifestly excessive in terms of current sentencing practice when regard is had to the particular facts and aggravating features of the present case.
It was open to the sentencing judge to conclude that the applicant was not suitable for a CCO having regard to the extent of his prior breaches of court orders and the gravity of the offending.
It follows that leave to appeal should be refused.
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