R v Kama

[2000] NSWCCA 23

Reported Decision: [2000] 110 A Crim R 47

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v KAMA [2000] NSWCCA 23
FILE NUMBER(S):	CCA 60479/99
HEARING DATE(S):	14 February 2000
JUDGMENT DATE:	14 February 2000
PARTIES :	Regina v Torrence KAMA
JUDGMENT OF:	Spigelman CJ at 1; Hulme J at 21; Smart AJ at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0552
LOWER COURT JUDICIAL OFFICER :	Williams DCJ

COUNSEL :	M C Marien (Crown) A Webb (Respondent)
SOLICITORS:	S E O'Connor (Crown) T A Murphy (Respondent)
CATCHWORDS:	CRIMINAL LAW - sentencing - Crown appeal - maliciously inflicting grievous bodily harm - manifestly inadequate sentence - double jeopardy - Criminal Appeal Act 1912, s5D - Crimes Act 1900, s35
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Criminal Appeal Act 1912 Crimes Act 1900
CASES CITED:	R v Gordon (1994) 71 A Crim R 459
DECISION:	Crown appeal allowed, sentence quashed and new sentence substituted. Respondent sentenced to a minimum term of two years penal servitude to be served by periodic detention commencing on 20 August 1999, with an additional term of one year periodic detention commencing on 20 August 2001.

IN THE COURT OF
CRIMINAL APPEAL

60479/99




SPIGELMAN CJ
HULME J
SMART AJ

Monday 14 February 2000
REGINA v Torrence KAMA
JUDGMENT

1 SPIGELMAN CJ: This is a Crown appeal pursuant to s5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour Judge Williams at the Sydney District Court on 9 August 1999. On 12 May 1999, the Respondent had pleaded guilty to one count under s35 of the Crimes Act 1900 of maliciously inflicting grievous bodily harm to Shailendra (Tommy) Naidu (the victim).

2 The maximum penalty for an offence under s35 of the Crimes Act is penal servitude for seven years. The sentencing judge imposed a sentence of penal servitude for twenty-seven months, comprising a minimum term of nine months, to be served by way of periodic detention commencing on 20 August 1999 and expiring on 19 May 2000, with an additional term of eighteen months commencing on 20 May 2000, expiring on 19 November 2001.

3    The offence occurred on 23 February 1998 and was constituted by a vicious assault by the Respondent, then aged seventeen years and eight months, together with a co-offender, Livingstone Oloapu, then just under the age of sixteen. A third person was involved in the attack and acted as a lookout.

4    The evidence of an eye witness was accepted by the sentencing judge and was to the following effect:

"Both of them were stomping Tommy with their feet and punching him with their fists. Tommy was on the ground and he looked like he was knocked unconscious. Both guys said something like, 'you keep out of this'. They were hitting Tommy about the head and he was bleeding a lot from the left side of his head. They were just hitting and stomping on Tommy, mostly on his head. They were really vicious, they hit and stomped on his head continuously many times."

5    In addition to this evidence, still photographs were available which confirmed some part of the eye witness's report in the sense that they showed the foot of the Respondent coming into contact with the head of the victim on a number of occasions.

6    The victim suffered severe head injuries and brain damage consistent with the evidence of a vicious attack. He was an inpatient at Royal Prince Alfred Hospital until 11 March 1998, noting that the offence occurred on 23 February 1998. On 11 March the victim was transferred to the Metropolitan Rehabilitation Private Hospital. The nature of his traumatic brain injury was identified in the evidence before his Honour. The victim underwent a rehabilitation programme and was discharged from the inpatient programme on 9 April 1998. His treating doctor indicated that the length of the period of post-traumatic amnesia was consistent with "an extremely severe brain injury". The medical opinion, which was accepted by the sentencing judge, was that the victim had a permanent brain injury which affected, and will affect, his memory and concentration.

7    As his Honour expressed it, this was "a vicious assault". The objective circumstances were extremely serious. The Respondent inflicted sustained and repeated acts of violence on the victim. The attack occurred in a public place and must have terrified members of the public who observed it. The attack was committed in company. There was a substantial disparity between the significant physical size of the Respondent and that of the victim. The attack continued even after the victim was totally defenseless and lying on the ground. The nature of the injuries were severe and, to a significant extent, permanent.

8    The Crown submits that the gravity of the objective circumstances of the attack and of its consequences are such that the sentence of periodic detention imposed by his Honour was on its face manifestly inadequate. The Crown, however, had greater difficulty pointing to any particular error in his Honour's reasons. Its submission are expressed in the following way:

"(a) His Honour gave undue weight in the sentencing exercise to rehabilitation and to a finding of 'emotional immaturity' on the part of the respondent and
(b) His Honour gave insufficient weight to the question of general and specific deterrence."

9    Nothing in his Honour's reasoning would suggest that the weight he gave to what was described as the Respondent's "emotional immaturity" was in any way "undue". Nor is there any aspect of his Honour's reasoning which suggests that the weight given to deterrence was in any way "insufficient". The only basis for a conclusion that the weight given was, respectively, either "undue" or "insufficient" was the size of the final sentence. The Crown asserts that it was so manifestly inadequate as to fall outside the permissible range for sentencing in the circumstances of this case.

10    The particularly relevant passage in his Honour's reasoning is as follows:

"What I gather from the psychological report and the probation and parole report is that I have before me a person with an immature mind in a mature body. However, there is nothing in either report that suggests any overt or recognised psychological problems. What this tends to mean from a sentencing point of view is that I should lean more towards treating Mr Kama in accordance with his emotional maturity and thus more attention perhaps should be paid to questions of rehabilitation rather than general deterrence. That being said nonetheless the question of general deterrence and associated specific deterrence cannot be overlooked given the serious nature of this offence."

This reasoning is not open to criticism.

11    A submission was made that what his Honour referred to as "emotional immaturity", would not have justified applying the principles of sentencing in some of the authorities which refer to an accused with a "mental disorder or abnormality". However, in my opinion, nothing in his Honour's reasoning suggested that his Honour approached the task in that way. Indeed, he made express reference to the fact that the reports before him did not suggest any recognised "psychological problems".

12    His Honour made a number of references to the serious objective circumstances of the offence and he referred to the aggravating feature involved in the offence being committed in company. He noted that this type of offence was increasingly prevalent in young men of this age group. It was for these reasons that his Honour decided that the case was not an appropriate one to be dealt with under the Children (Criminal Proceedings) Act 1987, even though the Respondent was seventeen years and eight months at the time of the offence.

13    His Honour concluded that a custodial sentence of some character was required but that this was an appropriate case in which the sentence could be served by way of periodic detention. Whilst, no doubt, his Honour had regard to all of the matters to which he had earlier referred, notably the psychological report, in the context of stating that periodic detention was an appropriate sentencing outcome, his Honour said that this was so "having regard to his age and lack of criminal record". There was evidence before his Honour not only of the lack of a criminal record, but also of good character and of a stable family life and, particularly, the evidence from the Respondent's father, who has expressed surprise at the conduct, which he suggested was out of character.

14    In my opinion, his Honour was entitled to identify "emotional immaturity" as a matter justifying greater weight to rehabilitation and less weight to general deterrence. His Honour was entitled to take into account age and lack of prior convictions as justifying the selection of periodic detention rather than a full-time custodial sentence. These were all factors relevant to be taken into account by the sentencing judge, in the general way he did. The weight to be given to such matter was, within broad limits, a matter for him. In my opinion, this case is concerned with those limits.

15    His Honour made a finding of special circumstances in the following terms: "having regard to his age and lack of antecedents and the fact that it is going to be a first time custodial”. It is by no means clear that these matters are special circumstances warranting a relationship between the minimum term and the additional term other than the statutory relationship to any significant degree or at all. The end result is that, instead of the one-third relationship, his Honour reduced the minimum term to one-third of the total, imposing a nine months minimum term and an additional term of eighteen months.

16    The Crown put before the Court statistics of the Judicial Commission for this offence. This is an offence which can vary to such an extraordinary extent, particularly in terms of the severity of an attack, that such statistics are unlikely to be of great assistance. However, of the 305 offenders dealt with in the District Court for this offence between January 1990 and July 1998 only 60 per cent received a full-time custodial sentence; 15 per cent received some form of recognisance; 14 per cent received community service orders; and 10 per cent received periodic detention orders. Of some particular significance in the present case is the sub-category of 83 of these offenders who shared characteristics with the Respondent in this case, namely, no prior convictions, a plea of guilty, no Form I matters and only one count. Of this category, only 46 per cent received full-time custodial sentences, with 20 per cent receiving periodic detention. These statistics, even for the sub-category, do not indicate the gravity of the offence in the cases to which they relate. However, nothing in the statistics suggests that a sentence of periodic detention is outside the permissible range, but this must always depend on the particular circumstances of the case.

17    In the present case, the submission is that the actual result is a sentence manifestly inadequate. This must be determined by the viciousness of the attack and the severity of the consequences.

18    In my judgment, his Honour did err, particularly with respect to the minimum term being a short period of nine months to be served by way of periodic detention in circumstances of an attack of this character. That was, in my opinion, below range. This was an appropriate case at first instance for a full-time custodial sentence to be considered, but I am not prepared, on appeal, to impose such a sentence on the Respondent. He has served a substantial proportion of the minimum term, some six months out of the nine months. The principles of double jeopardy are such that, in my opinion, an increased sentence of periodic detention is the appropriate outcome on the appeal.

19    The special circumstances to vary the statutory relationship on the appeal include the fact that an additional term is being imposed in an appeal.

20    In my opinion, the appropriate orders are: quash the sentence and to substitute a period of two years to be served by way of periodic detention expiring on 19 August 2001 and a one year additional term expiring on 19 August 2002.

21    HULME J: In the case of Gordon (1994) 71 A Crim R 459 at 468 this Court had the following to say concerning punishment:

"…the sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238. It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Dodd (1991) 57 A Crim R 349 at 354. Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed: Rushby [1977] 1 NSWLR 594 at 597-598. Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Goodrich (1952) 70 WN (NSW) 42 at 43; Cuthbert [1967] 2 NSWR 329 at 330; Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done."

22    I do not for one moment underestimate the weight which the Courts traditionally give to leniency on those who committed offences while young. Nevertheless, the authorities, including the decision of Gordon have made it clear that leniency on account of youth can be taken too far. In this case, I do not believe that the community, or the victim, could possibly feel that justice has been done, possibly no matter what sentence is imposed upon the offender, but certainly when the sentence does not include full-time custody.

23    There used to be a commonly accepted principle in this country that you do not hit a man when he is down. This offender not only hit the victim when he was down, but kicked him and stomped on him on the head in the way that the Chief Justice has described.

24    I would add to his Honour's quotation from the account of an eye witness something further. Immediately following the passage which the Chief Justice read, the eye witness goes on:

"I tried to grab them and push them away from Tommy, but the second guy pushed me aside and said, 'Are you Sangwa' (which is apparently the name of the triad gang). I said, 'I don't know what you are talking about.' I walked away from them and out towards the footpath. The Islander guys were still beating up Tommy. As I got to the entrance a third guy who was Asian pushed me back into the station and said, 'Are you Sangwa?'... I turned and went back to try and help Tommy. I saw the first guy, the big Islander... stomping very hard on Tommy's face and head. He said to Tommy as he did this something like, 'You Sangwa killed my cousin in Campsie.''

25    It is clear when one recognises the attempt of the eye witness to move away and then, having encountered the third member of the gang involved in the attack on the victim, the witness’ turning back, that the attack went on for a significant period.

26    In his interview with the police, the Respondent to this appeal advanced a number of reasons for the attack. His responses do not have any particular indication of credibility about them but they bear recitation. One was that the victim and his mates had chased the Respondent a couple of times with machetes. A second was that the victim had been threatening the Respondent’s girlfriend. The Respondent had not reported any of those incidents to the police, and the last occasion seems to have been in the previous year. Another explanation given was that he thought, albeit without any evidence, that the victim had been involved in the murder of his cousin and the Respondent, was going to teach the victim a lesson. A fourth was that the victim was staring at him and "I remember his face and then I think he reached, he put his hand at the back of his pants, so I hit him because he was staring at me. Then the victim fell over". According to the answers the Respondent did not know what happened then.

27    There is undoubtedly a problem in this community with the temptation and tendency of some of its members to resort to self-help resulting, amongst other things, in yet further violence. Such an attitude has to be stamped on hard by the courts. This attack, as his Honour found, was planned. There was no conceivable excuse for it, nor any half reasonable explanation for the vicious nature of what occurred.

28    It behoves the Courts to ensure that conduct such as stomping on a defenseless victim's head is, if not stamped out, at least rendered as infrequent as possible. Anyone who behaves as this offender did should receive a salutary lesson by way of a substantial full-time custodial sentence.

29    I can accept his youth, I can accept that he had an exemplary record apart from this offence. I can accept that he was remorseful. Nevertheless retribution and deterrence demanded and demand such a penalty in the case of the Respondent.

30    This Court traditionally imposes a sentence lower than should have been imposed at first instance, or alternatively a sentence at the bottom of the range. Even on that basis, the proper result of this appeal should be that it be allowed and the Respondent sentenced to a minimum term of eighteen months and an additional term of six months.

31    SMART AJ: The gravity of the offence and the serious injuries inflicted are not in doubt, nor is it in doubt that this Court needs to discourage kicking and stomping.

32    The sentence is manifestly inadequate and it is unnecessary for me to traverse what has been recounted in the earlier judgments. The Respondent should have received a full-time custodial sentence from the judge.

33    However, the Respondent has now served some six months by way of periodic detention. He has relinquished his previous position and obtained a fresh position so that he can serve his periodic detention. He has the active support of his family. I have taken into account that the Respondent spent three weeks in custody between his arrest and the grant of bail.

34    Having regard to all the circumstances, including the difficulties raised by committing a respondent to full-time custody after he has served some six months of his periodic detention, the appropriate sentence is one of three years penal servitude comprising a minimum term of two years, starting on 20 August 1999 and ending on 19 August 2001 to be served by periodic detention, with the additional term of one year to start on 20 August 2001. I agree with the orders proposed by the Chief Justice and his reasons.

35    SPIGELMAN CJ: The orders of the Court are:
The appeal is allowed.
The sentence of the sentencing judge is quashed.
In lieu thereof the following sentence is substituted: a minimum term of two years penal servitude to be served by way of periodic detention commencing on 20 August 1999 and expiring on 19 August 2001 and an additional term of one year, also to be served by way of periodic detention, to commence on 20 August 2001 and to expire on 19 August 2002.

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