R v Sua

[2019] NSWDC 794

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Sua [2019] NSWDC 794
Hearing dates:	11 October 2019 and 06 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 4 years 6 months with a non-parole period of 2 years 3 months
Catchwords:	CRIME — Violent offences — Recklessly cause grievous bodily harm SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Subjective considerations on sentence — Age of offender SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General's application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Muldrock v R [2011] HCA 39 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Salec Sua (Offender)
Representation:	Henry Hudson (Crown) Peter Lange (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00391171

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. This is the last in the group of offenders who have been called for sentence for offences arising from events at a hotel in Rooty Hill in the early hours of July 21, 2018.  The proceedings commenced some little time back in the District Court at Parramatta but because of the rearrangement of my commitments the conclusion of the proceedings was brought forward to this week. Accordingly on 4 December 2019 I concluded the proceedings against Pio Misa, Dahcell Ramos, who was also known as Dahcell Marco Charlton Ramos-Malo, and Jimmy Vaafusuaga.  Because of the varying stages of preparation of the proceedings the conclusion of the hearing in respect of this offender, Salec Sua, could not be arranged until today.  Thus, although when sentencing the other offenders I provided a summary of the facts and the discussion of the victim impact statement which is common to all of the offenders, because this is a further hearing for this last of the group it is appropriate that I return to the facts and the victim impact statement and deal with those documents once again before I formally convict the offender and impose the sentence that I intend.

PLEA OF GUILTY

2. He pleaded guilty in the Local Court to an offence of recklessly causing grievous bodily harm in company contrary to s 35(1) Crimes Act 1900 for which there is a maximum penalty of imprisonment for 14 years with a standard non‑parole period of five years for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

3. He also asks that I take into account an additional offence of assault occasion actual bodily harm in company upon a man named AH the particulars of which are set forth in a Form 1 which he has signed and which has been signed on behalf of the Crown.  The maximum penalty specified for that offence that would be brought to account were he to be sentenced on that offence separately is imprisonment for seven years. 

4. The particulars of the offences appear in the charge certificate filed in the proceedings in accordance with the present legislative arrangements dealing with the management of proceedings through the Local Court toward sentencing proceedings in the District Court. These provide for the offence of reckless grievous bodily harm that on 21 July 2018 at Rooty Hill in the State of New South Wales the offender caused grievous bodily harm to TT, being reckless as to causing actual bodily harm, while in the company of Pio Misa, Dahcell Ramos, Jimmy Vaafusuaga and Timothy Willett.

5. The particulars of the offence of assault occasion actual bodily harm in company appearing in the same certificate, contrary to s 59(2) Crimes Act 1900, are on 21 July 2018 at Rooty Hill in the State of New South Wales the offender assaulted AH thereby occasioning actual bodily harm to him while in the company of Pio Misa, Dahcell Ramos, Jimmy Vaafusuaga and Timothy Willett. 

6. The plea of guilty in the Local Court, in accordance with the legislation governing these proceedings, allows for the offender a discount of 25% to the sentence for the principal offence, that is to say, a reduction of 25% to the sentence that would have otherwise been imposed in the absence of the plea of guilty. 

THE FORM 1 OFFENCE

7. The Form 1 offence will be taken into account in accordance with the provisions of s 33 Crimes (Sentencing Procedure) Act 1999. In addition to adhering to his plea of guilty to the principal offence he confirmed his guilt in respect of the additional offence and his wish that it be taken into account.

8. There is to be a sentence of imprisonment for the principal offence together with an appropriate increase to reflect the additional offence taken into account.  Having availed himself of the arrangement he avoids facing separate punishment for the additional offence but by availing himself of this procedure and gaining efficiency thereby provided, and also reflecting the extent to which this demonstrates he has some prospects of rehabilitation he must be given the benefit.  It would be, in my view, unlikely that he could successfully defend the additional charge if it went to trial before a jury properly instructed acting reasonably.  But even so he should be given the benefit of the course that he has taken for the utility that has provided.  The extent to which the sentence will be increased for the principal offence must be assessed according to the aspects of specific deterrence and the community's entitlement for retribution for the full range of his misconduct in accordance with the statements of principle that fell from the Spigelman CJ in Attorney General's application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

9. I will certify the Form 1 at the conclusion of these reasons. 

PRE-SENTENCE CUSTODY

10. He has been in custody for various periods since his arrest for this matter, initially between 21 July 2018 to 2 August 2018, a period of 13 days after which he was granted bail.  He then was brought back into custody on 13 October 2018 for one day and then back into custody on 17 July 2019 where he has remained.  The coversheet specifies a period of 101 days but in written submissions the Crown has corrected that and identified a period of 157 days which will require the backdating of this sentence today.  The Crown has specified in its submissions that the sentence ought to commence on 3 July 2019 bringing into account the pre‑sentence history, however using the sentencing date calculator provided by the judicial commission on their website the commencement date is determined to be 2 July 2019 and the sentence ought therefore to commence on that day.

THE CO-OFFENDERS

11. There were co‑offenders sentenced, as I have said, including Timothy Willett who was sentencing in the Mount Druitt Local Court on 21 June 2019 for an offence of assault occasion actual bodily harm and affray.  The magistrate, Corry LCM, imposed a term of imprisonment of 20 months, including a non‑parole period of ten months to date from 21 June 2019.  The conduct upon which Willett engaged was at a lower level of seriousness in contrast to the misconduct upon which these offenders engaged, moreover he faced lesser charges and was prosecuted summarily in a court with the jurisdictional limit of two years imprisonment for each of the offences upon which he was presented.  There could have been accumulation beyond the period of two years but the magistrate for the reasons expressed in the judgement which has been provided to me in the Crown exhibit A came to the view that the period identified was appropriate according to the case presented there, including the objective facts and the subjective case and the antecedent history of that offender. Thus, parity does not present a significant question in relation to the proceedings against him.

12. It is more important in the assessment of sentence for this offender in light of the decisions made in respect of his co‑offenders. 

THE FACTS

13. The facts are common to all of them, but as I say, in light of the proceedings being concluded separately it is necessary now to go through those facts once more.  They include that there were five offenders involved in this enterprise, and to repeat the names, Jimmy Vaafusuaga, Pio Misa, this offender, Timothy Willett and Dahcell Ramos-Malo.  All of the group are friends, indeed three of them, as I perceive matters, jointly engaged in the music industry and according to the material I have seen, both in respect of this offender and the others, they have demonstrated a level of talent which but for what has occurred might have indicated some promise in a musical career.  Whatever chances there are now for the development of that will have to be held until they have completed the custodial component of the sentences that were imposed and that is to be imposed in this case.

14. On the night of the misconduct all five were together at a house party before they attended the Carousel Inn at Rooty Hill around 1am.  They had all been drinking alcohol.  At that hotel were TT aged 42, AH aged 39, and ST aged 41.  ST was the duty manager at the hotel and became a victim of members of this group as a consequence of his efforts to have the offenders desist in their attacks.  The consequence for him was that he was attacked and suffered significant injury.  The offender is not charged in respect of the attack upon ST. 

15. The episode was captured by closed‑circuit television. The recording was tendered in the proceedings before me when the hearing commenced in Parramatta.  I have viewed the footage on two occasions so far.  The matter was presented on 11 October 2019 in the District Court Parramatta and it was from that date adjourned for the judgement and sentence.  The recording is aptly described in the statement of agreed facts, to which I am presently referring. Reading the bald facts of such an event allows one's imagination to consider how significant the violence might have been but quite often, as here, the reality is more profound when it is observed.  The only worse presentation would be if one was amongst it at the time it was actually unfolding.

16. The Crown case presented against the offenders is on the basis of a joint criminal enterprise to assault TT and AH.  There was a measure of provocation, it would appear, that was offered by one or both of these men, to which I shall come, and though that might have excited some level of anger or distress it could not have offered any justification for what followed. But it cannot be overlooked in the determination of the punishment to be imposed. 

17. Sometime after 6.30pm on the evening of Friday 20 July 2018 TT and AH were in the hotel drinking and continued to do so to the point of intoxication.  About 12.55am in the following morning they were in the outdoor gaming area of the hotel and about 12.57am AH sat down in front of a poker machine and began to play it.  This time line is I should add drawn from the CCTV recording.  TT initially stood behind AH before sitting down on a seat next to him.  There was an unknown male of Polynesian appearance sitting on the seat next to TT.

18. About 12.59am the offender entered the outdoor gaming area through the external doors dressed in a black hooded jumper with a white stripe on the hood with the hood over his head.  He immediately walked towards the poker machine in the corner and greeted the unknown male who was playing on the machine next to TT.  Shortly after, the offender walked back outside of the hotel into the car park. 

19. About 1.01am while TT and AH were still sitting in front of the same poker machine they were spoken to by one of the security guards, a Mr Falaniko, who thought that they were being a little too loud; he asked them to keep it down.  Around the same time the offender walked back into the gaming area through the external entrance doors.  He returned to the poker machine next to TT and stood behind the unknown male.  While he was standing there TT said to him, "why are you looking at my fucking machine".  The offender immediately became aggressive.  The security guard, Mr Falaniko heard TT utter these words to the offender and walked over to them.  He said to TT, "he is just watching his friend play".

20. Mr Falaniko asked the offender if he had identification and the offender produced a New Zealand passport which the security guard checked and then walked away. 

21. About 1.03am a gold coloured Ford sedan drove into the car park and parked near the entrance to the bistro.  The external entrance doors to that part of the hotel are a short distance from the external entrance doors into the outdoor gaming area but on the same side of the premises.  The Ford was being driven by Ms Maka who had agreed to drive a number of people to the hotel from the house party; one of the passengers was the offender Vaafusuaga.  After the car was parked near the bistro entrance Vaafusuaga alighted and stood near the external entrance to the bistro and had a cigarette.

22. Over the next few minutes he was met by Misa, Ramos-Malo, Willett and another man named Laush.  While this was happening the victims and this offender continued to argue in the gaming area.  Mr Falaniko walked back over to try and defuse the situation.  After a minute he told the offender to leave the premises.  As he walked towards the exit the offender began yelling repeatedly to the victims "come outside, we'll fight, come out".

23. Before he walked outside both of the victims got up from their seats and walked towards him, yelling and gesturing.  The offender stopped at the door and gestured to the victims to come outside.  At 1:05:30am the offender walked outside the premises through the external gates, slamming a gate on the way out.  As he walked outside the gaming area into the car park he continued to yell and gesture to the victims.  He was immediately seen by Vaafusuaga, Laush, Ramos-Malo, Misa and Willett who were still standing outside the bistro entrance.  They ran toward the offender and met him outside the external gates to the gaming area; one of them asked, "What happened".

24. At this point the security guard, Mr Falaniko, and another security guard walked to the entrance gates to see what was happening.  The group of five offenders attempted to enter the gaming area but the security guards would not allow them to do so.  At this point one of the offenders said, "Let's go to the other side".  Ramos-Malo, Misa, this offender and Willett then all ran back toward the bistro entrance and entered the premises through the external bistro doors.  The four then ran through the premises and entered the outdoor gaming area through the internal door.

25. About the same time Vaafusuaga and Laush managed to get into the gaming area through the external gates after the security guards' attention was turned to the other offenders coming through the other doorway.  The group of five offenders all walked toward the two victims.  This offender in particular was acting aggressively.  As he walked toward them, he was shouting at them, challenging them to a fight.  The victims got up from their seats raising their arms and gesturing toward the offenders.

26. At this point the three security guards that were present tried to defuse the situation by getting between the offender and the victims, but the offender continued to make attempts to push past the security guards.  Ultimately the security guards were able to pull him away from the victims and while they were doing so the assaults perpetrated by the other offenders commenced. 

27. The attack upon AH involved Misa who pulled a timber chair leg from inside of his clothes.  He held that by his side for a short time before striking AH on the back of the head twice.  AH immediately backed away.  Misa followed him into the middle of the brawl and hit him for a third time.  At this point this offender was still being held back by security.

28. Ramos-Malo pulled out a hammer from inside his jacket and struck TT in the head a number of times.  As TT was fighting back he was punched in the back of the head by Vaafusuaga.  He fell to the ground and Vaafusuaga continued to punch him multiple times in the head while he lay on the ground.  At the same time, Ramos-Malo stomped on TT's head multiple times and raised his arm to hit TT again with the hammer but as he did so he was pulled away by Laush.  Ramos-Malo and Vaafusuaga then both moved toward AH.  While this was happening Willett turned his attention to AH and punched him multiple times in the head.

29. AH ended up on the ground, and Laush came over to pull Willett away, however before he did so Laush appeared to kick towards AH.  After about a minute the offenders began to head toward the exit; while walking to the exit Vaafusuaga picked up the hammer which had been dropped by Ramos-Malo and took it with him as he left.  TT was left lying in a pool of his own blood unconscious on the ground for at least 30 seconds. 

30. At this stage the offender was released by the security.  While TT was still lying motionless on the ground the offender walked over to him, picked up his head by his hair and shook it for a short time then walked out of the external gates of the gaming area into the car park.

31. The facts then continue with the attack upon ST in respect of which Ramos-Malo was charged. 

32. After the offenders had been removed from the premises, they remained just outside the gate of the gaming area.  Laush and this offender continued to yell abuse and gesture towards AH who was standing in view of the exit gates gesturing for them to come back in.  This offender attempted to get back inside but was prevented from doing so by the security guards.  Laush at this point jogged around to the external bistro entry door and again entered the premises.  Ramos-Malo followed him.  Laush began walking through the hotel.  Ramos-Malo entered and ran through the hotel, past Laush, towards the internal entrance to the poker machine area.  When he arrived, Ramos-Malo opened the door where AH was standing close by and struck AH from behind with a timber chair leg to the head.  He subsequently dropped the timber chair leg.  Following this Laush, Ramos-Malo and Willett were escorted to the exit by security.

33. After a few minutes had passed one of the offenders ran back towards the external gates to the gaming area, jumping up and down and screaming armed with another timber chair leg which he subsequently threw toward the security guards who were standing at the gates.  This narrowly missed them.  One of the other offenders walked over to that individual and pulled him away and they left the scene. 

34. About 1.08am police were called by another employee of the Carousel Inn.

35. At 1.12am the police started arriving at the location and others began patrolling the surrounding areas.  The offenders began running from the scene, with the exception of this offender who jumped into the gold Ford sedan driven by Ms Maka.  She immediately began to drive toward the car park exit but stopped about 30 metres away when the police activated their sirens.  The police approached the car and spoke to the occupants and the offender was arrested.  The facts then describe the apprehension of the other offenders and then deal with the injuries suffered by the victim TT.

13. He sustained the following:

14. 1.  A non‑displaced fracture to the right side of the skull near the temple (non‑displaced fracture of the right squamous temporal bone).

15. 2.  Fractures to both sides of the nasal bone (bilateral displaced nasal bone fracture).

16. 3.  A displaced nasal septum fracture.

17. 4.  Two right sinus wall fractures (extensively comminuted and moderately displaced maxillary sinus wall fractures).

18. 5.  Fractures to the floor and lateral wall of the right eye socket (mildly displaced comminuted right orbit floor fracture and mildly displaced comminuted right orbital lateral wall fracture extending into the right sphenozygomatic suture).

19. 6.  A laceration to his cheek and lip that breached the dermis and epidermis.

20. 7.  A 5 centimetre laceration to his right eyebrow.

21. 8.  A 4 centimetre laceration to his right eyelid.

22. 9.  Significant swelling to his face, particularly around the right eye.

23. 10.  A wound on both ears as a result of earrings being pulled from his ears.

24. He was discharged from Westmead Hospital during the afternoon of 21 July 2018.  AH was treated at the scene by paramedics for two lacerations to his head.  He was advised to go to hospital but refused.  Thereafter he suffered headaches for a couple of days.  The injuries to ST were then discussed in the facts but that is not a matter with which this offender is charged.

VICTIM IMPACT STATEMENT

48. The victim impact statement outlines the impact of the attack upon TT.  At the time of the document he was 44 years of age; he speaks of his injuries and his moving in and out of consciousness over ten hours and being unable to breathe properly.  He could not feel half of his face; he said he was scared, worried and afraid for his fiancé and children knowing what he had suffered.  He writes in terms of wanting to die in the period that he was experiencing this pain and discomfort.

49. He did not leave his house for two weeks after the assault frightened of people who were walking behind him.  He returned to work but had to move to a different section of the company for a period of time because he was concerned he might run into the perpetrators of the attack upon him.  He did not know who they were, he did not know what they looked like and he was concerned what would happen should he have run into them by accident unaware that he was proximate to them.

50. He lost income as a result of this attack, being unfit for work.  He cannot feel the right‑hand side of his teeth; they are completely numb.  The right‑hand side of his cheek and the eye socket next to his nose is also numb.  The doctors have advised him that he might never recover sensation or feeling back in these areas.  It has remained so for 12 to 18 months.  He speaks of feeling anxious and in terms speaks of hypervigilance.  He is uncomfortable in the presence of Islanders, as he describes them, concerned that they might be or be connected with his attackers.  He is upset about the impact of what occurred to him upon his fiancé, his children and his grandson, and his stepchildren.

51. The victim impact statement is an opportunity for the victim to confront his attackers, to have the Court and his attackers appreciate the significance of their egregious behaviour upon him and the consequences of it.  The document is not received in aggravation of the objective gravity or moral culpability of the offender or to increase the punishment that he is otherwise to suffer but it does give the Court insight into the effect of such violence upon those who suffer injury as a consequence of it.

THE OFFENDER

52. The offender is now 26 years of age and was 25 at the time of the misconduct.  He is the oldest of the group involved in this attack.  He comes before the Court with an antecedent record; his first entry is for a matter in the Mount Druitt Local Court on 12 August 2016 when he was charged with having custody of an offensive implement in a public place and an offence of riot.  The offensive implement charge was taken into account on a Form 1 in the proceedings and for the riot he suffered imprisonment of nine months, including a non‑parole period of three months and 11 days from 2 May 2016 with his expected date of release 12 August 2016.

53. In October 2017 in the Local Court at Penrith he was charged with stealing from a person.  There were three charges.  In respect of each he was sentenced to imprisonment for nine months commencing on 2 February 2017, including a non‑parole period of six months and 23 days with his expected date of release 24 August 2017. 

54. On 27 June 2012, which in fact is the first entry in time appearing on this antecedent report, he was convicted of larceny and fined $300 with court costs.

55. In custody he is not shown to have engaged upon any misconduct which is a significant matter in this case in light of the evidence he gave, abstaining from alcohol and drugs even though upon his evidence they would be available should he want to seek them out. 

56. He gave evidence before me. He was on one view an unimpressive witness.  He did not speak clearly, he mumbled, he was uncertain and clearly nervous and insecure in the witness box, which is understandable.  He is sitting in the dock waiting to be sent to gaol and no doubt was anxious about the whole process in which he is participating, but to his credit he submitted to the oath, responded to questions put to him by is counsel and then faced cross‑examination.

57. He attributes his misconduct to excessive use of alcohol.  The significance of that though is ameliorated because of s 21A(5AA) Crime (Sentencing Procedure) Act by force of which self‑induced intoxication is not to be taken into account in mitigation.  He did not, upon my assessment of his evidence, seek to avoid the misconduct or the role he played in these events when he was cross‑examined by the Crown.

58. He agreed with what was contained in the facts, or such facts as were put to him in the course of cross‑examination.  He was attributed with an explanation in terms that he misbehaved in this way because of peer influence which is generally an imprecise term or concept often simply thrown into the equation.  I asked for his explanation about that because the peers with whom he was engaged in this night were his friends, at least some of whom were engaged with him upon their musical endeavours.  He explained that he meant general peer influence which impacted upon his exercise of judgement and decision‑making; I paraphrase, allowing him the limitations in his expression that were quite patent in the course of his evidence.

59. He agreed with the facts put to him regarding the charge of riot in 2016 where, as I understood what the Crown said, there was an event involving conflict between two gangs out in the Western Suburbs.  He said he got involved between the two of them but he is not, at least in present days, a part of any such group.  There is reference to him being with a member of an outlaw motorcycle group, again an emotive term, but that was clarified with his identification of the Outcasts, a group with which I am familiar because I had represented some members of that group when I was at the bar.

60. He explained how he became connected with them; it was when he was first in gaol, he was relatively young, no doubt fearful. These individuals provided him with some guidance on how to cope with his new environment, and it appears they might have provided him with some measure of protection in that custodial setting, but he is not otherwise involved with them, and I accept that to be so.  He has expressed remorse and contrition and a desire to change his ways so that he does not come back into the criminal justice system once he is released back into the community.  I should give him the benefit of those representations to me.

61. No suggestion put to him in cross‑examination that he was being untruthful or inaccurate in those utterances and I take the view that he was not so, even in the light of what I am about to address. 

62. He has been assessed by two community corrections officers who have each provided sentence assessment reports, the first of which was written on 9 October 2019.  This document records that attempts were made to contact his family, without success, so that verification of information provided could not be achieved, but according to the offender prior to coming into custody he was living with his family in the Western Suburbs of Sydney, he had been in a relationship for the past eight years which was somewhat unstable, it appears; he described it as on again/off again.

63. He was unemployed at the time of the offending.  There is reference to his music with his group of friends and the success that was achieved through their streaming of their product.  There is reference to his criminal history, described as minor, dating back to 2012 and the report attributes to him the proposition that his offending behaviour arose because of his social influences.

64. Beneath the heading "attitudes" the following appears:

"Mr Sua appeared to minimise his actions in the index offences, stating that he wasn't involved in the physical fight.

Mr Sua stated he doesn't agree with the police facts, however would not comment on which parts he does not agree with.

Mr Sua offered the limited insight into his offending behaviour."

65. The attitudes reflected in that part of the report seem to have dissipated; he has not taken issue with any of the information put before me by way of the agreed statement upon which he has pleaded guilty and which he accepts for the purposes of sentence.  He understands now that not having actually struck a blow does not relieve him of his liability for punishment in this case; he was part of a joint criminal enterprise, he has pleaded guilty to participation in the joint criminal enterprise on the basis that he was the instigator, the vigorous aggressor throughout but that the Crown has not and cannot prove that he had knowledge of the weapons before they were introduced into the attack at which point he became aware of them for the first time. This notwithstanding he persisted in his efforts to involve himself in what was occurring.  At the very least, his behaviour could have done nothing but offer encouragement to those who actually struck the blows.

66. There is no evidence before me as to where the weapons came from at any point before this attack.  It is not clear whether they were taken there in anticipation of a problem, there is no evidence from which I could conclude that anyone left the hotel to retrieve the weapons, to bring them back for use in the brawl.  There is no evidence upon which I can conclude that weapons were carried in the motor vehicle in the event that they might be needed in such a confrontation.

67. What is important though is that they were used, they were used to inflict harm, and in the case of the victim of this charge, grievous bodily harm was caused as described in the material I have rehearsed.  It is in this report where he is attributed with identification as a member of the Outlaw motorcycle group but he is attributed with the proposition that this is incorrect and he denied any affiliation.  Having in my career dealt with Outlaw motorcycle groups they are jealous of their status; people do not simply become members of these groups, they run through a process of assessment, to put it in a most neutral way, as prospective members.

68. I accept that his association with the Outcasts, such as it was, was confined to the circumstances that he described and that he is not, upon the material before me, to be found as one who is an aspirant to membership of that group; it is inconsistent in any event with the balance of the material which I am to come.  He represented intoxication from alcohol at the time of the offence; I have already dealt with the significance that does not have in these proceedings.

69. He denied that his actions were violent due to not being involved in the actual attack, that is to say, the actual infliction of harm, and it is upon this basis that the author of the report attributed him with minimisation of the behaviour upon which he engaged.  He is attributed with representations that no‑one deserved the treatment that was administered to the victims in this case.  He is attributed with representations consistent with the willingness to participate in appropriate programs to address his misconduct.

70. There was a further sentence assessment report sought and it was in due course forthcoming and tendered today to become part of exhibit A.  This was written on 6 December 2019.  It would appear that there has been some success in having information provided verified; there is no caveat in this report warning that the family could not be contacted to verify what had been provided by the offender.  This tells me that he was residing with his parents and three siblings before his arrest; he intended to return to them upon his release.

71. His family and his partner continue to support him and maintain contact.  He has no dependent children.  His previous employment as a chef and youth worker is not available to him now because of his offending.  His income was largely the result of his music production.  He has been gainfully employed in custody; he told me about that in his evidence, working in the metal shop.  In this report he attributes his offending to peer influence and intoxication after binge drinking on the day of the offence; I have already commented upon that.

72. Beneath the heading "attitudes" on this occasion the following appears:

"1. Mr Sua whilst his involvement in the offences by denying physically taking part, however he admitted to verbally encouraging his friends to assault the victims.

2. He appeared to take little responsibility for his offending, instead laying blame on his peers and proposed that he would not have encouraged the assault had he realised the extent of the injuries to the victims."

73. That is challenged, I might say, by what unfolded and his persistence with his involvement in what occurred and the vigour with which he was calling out the other people to participate further in the violence.  To the extent that he might have been trying to minimise his wrongdoing, I would not hold him to that representation, particularly in light of the evidence he gave before me.

74. His product of choice is alcohol and he does, on this document, drink to excess; as Mr Lange pointed out, according to the material he started drinking at a young age and it has become a problem for him, but I am told in custody he has been able to desist and detoxify, it appears, without a great deal of assistance from third parties. Clearly, he has the capacity to not drink.  One hopes he is able to persist with that from this point on. 

75. In this case the material tendered includes a report from a psychologist Tim Watson‑Munro written on 4 December 2019.  I had confirmed for me that this was prepared upon a two hour consultation conducted by way of an audio‑visual link.

76. Having seen the offender in the witness box, having assessed his demeanour and his capacity for communication I would suggest that to have taken the step of having this consultation by way of an audio‑visual link was not an adequate medium in which to make an assessment of his psychological profile or to provide a report that might assist the Court in the determination of sentence.  Perhaps that explains why there is in the second paragraph on p 2 the following:

"Mr Sua stated that he has limited recollection of what occurred on the occasion of his offending.  It is against a backdrop of a long standing addiction to alcohol which beyond being relevant to the current matters is implicated in his prior criminal history."

77. That does not sit comfortably with what is contained in the two sentence assessment reports where he is attributed with explanations for his misconduct and the reasons why he engaged upon it and gave other information regarding the event.  He is attributed with detoxification in custody, thinking clearly, and making progress consistent with what he said to me.  His parents remain married and are supportive.

78. His father is 53, his mother 45, and according to the information in this report they are worthwhile members of the community and have not made any contribution to the conduct or pattern of offending upon which the offender has engaged since he came into the criminal justice system.  He came to Australia at the age of seven; there is a discussion of his education which continued until year 12 after which he started doing youth work in Mount Druitt at the Street University.  He then obtained work in a kitchen in a restaurant at Mount Druitt without formal training, then he moved on to NBN, installing cable for another eight months and was working as an audio engineer up to the time of this offence.  Of course, across that history is the other offending which brought him into gaol for the sentences that were imposed.

79. There is reference to his success in the music work that he has been doing; there is reference to his drinking, that he does not use other drugs, and his sobriety since the breach of bail that led him to being put back into gaol because he entered licensed premises contrary to the conditions that were imposed. His sobriety apparently commenced at that point; he stopped drinking and has not consumed alcohol since.  Again, he is attributed with a limited recollection of what is alleged against him, but nonetheless he accepts his culpability.  I observe again, that does not sit comfortably with what is contained in the sentence assessment report.

80. There is then reference to a sexual molestation by an extended family member which involved genital fondling when he was about the age of 13.  There is nothing to suggest, in my assessment of the matter, that it has made any meaningful contribution to his decision to abuse alcohol to which he alleges he became addicted. 

81. The next offering in this report, referring to low self‑esteem, sexual orientation issues, depression, hypervigilance and loss of trust in others does not sit well with the balance of the documents that are tendered in his case. 

82. I find this report to be of little assistance overall, I must say, and the proposition that it might have value is challenged by the fact that there was a two hour consultation over an AVL medium which included clinical assessments, and psychometric assessment. 

83. I put it to one side, except that I would take into account the positive aspects of his family circumstances and the support that he has from his mum and dad and his partner. 

84. I might add to my remarks that I could imagine nothing worse than sitting in a court room listening to a judge discuss criminal misconduct of this nature that a child of mine, or a grandchild of mine might have engaged upon. To be anticipating that their son is going to be sentenced to imprisonment for this misconduct could be nothing less than horrific for them and the Court extends its sympathy to their predicament, but the difficulty is that he engaged upon the misconduct that put him before the Court and he must face the consequences that will flow.

85. There is a bundle of material from people who have provided references, not only for this offender but also for the others. The first of those is a document from an organisation with the title or label "Forever Ever".  The document was prepared by Hau Latukefu.  This is written as a reference in support of the offender.  The author has worked in the music industry since 1993, there is a description of the success of the record company Forever Ever Records and that this is a joint venture with a multi‑national music company operating here in Australia and elsewhere.

86. The author has known the offender since November 2018.  The author speaks of the talent that he exposed in the group OneFour of which the offender is a member or associate.  This author has given the offender and the others guidance, support and offered the benefit of the experience and resources that the company has. It is said that they have the capacity to succeed if they remove themselves from any temptations the street may offer, to use the words written by this person.

77. He is attributed with great potential in the music industry and it is tragic that he has put himself at risk at least for the next relatively brief period in his life.  There is further description of what he has achieved so far in his music. 

78. The next document is from an organisation When Worlds Collide written by Ricky Simandjuntak.  He also provided references for the others, and indeed gave evidence in one of the cases.  He managed these young men described by him as artists known as OneFour.  He is aware of the predicament that the offender faces.  He speaks of his experience in the industry and the talent exhibited by these young men, including this offender and their prospects for success.  He attributes him with remorse for the behaviour upon which he engaged.

79. Hummingbird House has a servant, Yvonne Dolman, who provided a reference.  She is a volunteer in this organisation which is located in Queensland.  It is a respite house for terminal children.  She has worked in the community with children and adults in the disability sector.  She has been doing this for over ten years.  She speaks of the group having approached her wanting to donate to children in need and there is reference to their concert and money that was harvested, apparently it was a donation of $2,500 that was made.

80. There is another document, Manna from Heaven, written by Rolando Pisia; again this author provided similar documents for the other offenders.  This person is the founder of Rekon, Youth Outreach Service & Co and a director of the organisation Manna from Heaven, Sandgate Incorporated.  He is also a youth pastor for the International City Church.  His experiences are summarised; he has provided his support; he refers to the achievements of OneFour and is grateful for the contribution they have made to which I referred when discussing the document from Hummingbird House.

81. Then there is a document finally from Caleb Tiedemann who is a young man, said to have been helped by the offender.  He writes that he was directed away from gang activity.  The offender has provided an excellent role model, emphasising the importance of providing for family, providing or creating a better moral compass.  He speaks of him as a good friend and mentor and clearly according to his perception the offender is a person of quality who has much potential for the community.

SUBMISSIONS AND CONSIDERATION

92. Mr Lange concedes in his submissions that the line in s 5 Crimes (Sentencing Procedure) Act 1999 is crossed and that he must face a period of imprisonment for the misconduct upon which he engaged. Although the charge is in respect of the grievous injury suffered by the victim TT, he correctly observes that the section under which this offence is charged carries a maximum penalty much below the penalty specified in the provision upon which the offender Ramos-Malo was sentenced.

93. I should observe before I continue with the submissions that because there is a standard non‑parole period in play here I must consider that in the course of determining what is the appropriate sentence. 

94. There is a decision by the Court of Criminal Appeal in which Johnson J has provided guidance: Tepania v R [2018] NSWCCA 247. His Honour begins his discussion of standard non‑parole periods and the legislation governing their application at para 110 in the judgement where he summarises the present terms of Pt 4 Div 1A Crimes (Sentencing Procedure) Act amended after the decision of the High Court of Australia in Muldrock v R [2011] HCA 39. As his Honour points out there the provisions in that part of the Act one must be read in the context of the Act as a whole. The standard non‑parole period is a matter to be taken into account as part of the single stage process in determining the appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.

95. The standard non‑parole period applies upon consideration of the objective factors affecting the relative seriousness of the offence whereupon it is found to be within the middle of the range for objective seriousness.  In assessing objective gravity it is necessary as required by the common law in addition to these provisions to determine amongst other things moral culpability and the Court must take into account all factors which bear upon the process of instinctive synthesis in the particular case, including the two legislative guide points, namely the maximum penalty and the standard non‑parole period.

96. In para 112 his Honour wrote:

"in sentencing for an offence (whether or not a standard non‑parole period offence), a court should make an assessment of the objective gravity of the offence applying general principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute).  Factors such as motive, provocation or non‑exculpatory duress may be taken into account in this way.  Regard maybe had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment."

97. There is then reference to the significance of motive or emotional distress which is always relevant if it accounts for criminal misconduct.  There is then a discussion of moral culpability used in a flexible way as part of the general law of sentencing.  There is then a discussion of Muldrock, Bugmy and Munda v State of Western Australia all dealing with the impact of challenging circumstances in formative years.

98. This offender, as I indicated, comes from a good family, and is clearly well thought of and has support in the community.  He foolishly got himself involved in this criminal misconduct with awful consequences because he apparently was significantly impaired from his consumption of intoxicating liquor. 

99. The Crown correctly points to the sentences I have imposed upon the other offenders and Mr Lange submitted, and I agree with what he had to say, that this offender should be seen to be closer to the position of the offender Misa in the level of moral culpability that should be brought to account.

100. Ramos-Malo I sentenced to an aggregate term of ten years with a non‑parole period of six years, but that included the amalgamation of sentences imposed for four matters, including an offence contrary to s 33 Crimes Act for which the maximum penalty is imprisonment for 25 years, an unrelated robbery for which the maximum penalty is imprisonment for 20 years, and the assault upon ST the hapless night manager who did no more than try and achieve peace in the course of this unwarranted attack.

101. I agree that this offender should be placed well below the point where Mr Ramos-Malo was dealt with.  Mr Misa however is more easily compared, as conceded by the Crown.  I sentenced him for this offence to imprisonment for four years with a non‑parole period of two years and I identified as indicative for the offence of recklessly causing grievous bodily harm a sentence of three years and six months; that was part of the aggregate sentence with partial accumulation for the offence of assault upon the other man.  This is a little different here in this case because the additional offence upon which Mr Misa was sentenced is to be taken into account, as I earlier described.

102. Vaafusuaga was sentenced for a s 33 offence and his sentence was one of four years with a non‑parole period of two years.  Parity is always a challenge in a case such as this where people have involved themselves in activities at different levels and have been prosecuted on different charges with different maximum penalties to be brought to account.  I must say I found a great deal of assistance in what was provided by the Crown in written submissions to help me negotiate the complexity that has been introduced in this matter by the way in which the various charges have been identified and applied.

103. I agree with the submissions made by the Crown that the objective gravity of the offending must be assessed with regard to all of the circumstances such that even though he played no part in the actual application of force to the victim of the principle offence, and the victim of the additional offence. That was as the Crown put it not through any lack of trying.  The CCTV footage demonstrates clearly that he made numerous attempts to get involved in the assault but was restrained from doing so by the security guards.

104. His moral culpability I agree would not be significantly reduced given his repeated attempts to get involved in this attack.  He was the instigator and the initial aggressor in conduct which could not be described as anything less than vigorous.  I have had regard to the degree of violence that was involved in the attack upon the victim in each case; it was extreme.

105. The offenders who actually caused the physical harm were armed with weapons and the attack upon TT involved the use of a hammer; it can be hardly surprising that he suffered such profound injuries as described.  His injuries were extensive and his sequelae continue.  The moral culpability is also informed, I agree, with what the offender did after TT was rendered unconscious on the floor laying in his blood when the offender walked up, took his head by the hair and lifted it and shook it.  Even though that was for a short time there is no explanation before me as to why he would have done such a thing.  I would reject any suggestion, not that it has been made, that he was checking on the welfare of the victim after having suffered the attack that was rained upon him, and the injuries that were occasioned. To have taken the man by the hair and shaken his head is deplorable.

106. The Crown points to the fact that this was conduct in company with four other offenders, a number of those who were armed, the use of the weapons; the verbal provocation is not ignored but it is of limited impact.  The attack occurred in the hotel in the confined public space and of course the self‑induced intoxication does not provide mitigation.  The Crown submits this is just below the midrange of objective seriousness and I would agree with that.

107. The Crown has dealt in the written submissions with parity, drawing the differences between this offender and the others.  Ramos-Malo of course, as I have said, was charged with more serious and more extensive offending, that is to say, more serious provisions and more extensive offending, including the robbery.  Misa is more comparable to this offender but there is a difference between Misa and this offender by reason of their age.  Misa was 18 at the time; this offender has a more serious criminal history which aggravates the matter, only to the extent though that it informs the extent to which leniency might have otherwise been provided, and the assessment of specific deterrence. It does not raise the objective gravity or the sentence that might be otherwise proportionate to the misconduct in accordance with what was said in various authorities including McNaughton. 

108. Vaafusuaga he is also in a different situation to this offender.  He was 20 years of age at the time of the offence without any criminal history. 

109. Timothy Willett, I have already dealt with. 

110. There are some prospects of rehabilitation which I accept.

111. The proposition that his involvement in this would have been kept at a verbal altercation I would reject; it is inconsistent with the description of the event and what can be seen of the offender on the CCTV footage.  If he could have gotten past those security people, I am satisfied he would have played a greater role in the infliction of injury upon these men.  I reject the proposition that he had a limited recollection of the event as represented by Mr Watson‑Munro; that is inconsistent with what is contained in the sentencing assessment report in each case which I find more reliable.  There is a history of non‑compliance with his conditional liberty leading to his revocation of parole for the riot offence as a result of further offending.

112. The Crown concedes prospects for rehabilitation; I would find that they exist.  I have also accepted that he has demonstrated appropriate contrition and remorse and he has strong support in the community, all of which speak loudly of special circumstances. 

THE SENTENCE

113. The offender is convicted of the offence of recklessly causing grievous bodily harm in company.  I specify a non‑parole period of imprisonment of 2 years and 3 months commencing on 2 July 2019.  He will be eligible for parole on 1 October 2021.

114. Upon a finding of special circumstances, I specify a longer period of parole of 2 years and 3 months to commence at the expiration of a non‑parole period and to expire on 1 January 2024.  The overall sentence is one of 4 years and 6 months taking into account the additional offence with the non‑parole period of 2 years and 3 months as I have announced.

115. I repeat those dates.  2 July 2019 to 1 October 2021 and then to 1 January 2024.  I certify the Form 1.

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Amendments

11 February 2020 - Correct typo

Decision last updated: 11 February 2020