R v Sua
[2016] VSC 194
•28 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0008
| THE QUEEN |
| v |
| SAM SUA |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2016 |
DATE OF SENTENCE: | 28 April 2016 |
CASE MAY BE CITED AS: | R v Sua |
MEDIUM NEUTRAL CITATION: | [2016] VSC 194 |
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CRMININAL LAW – Sentence – Common law assault – Good prospects of rehabilitation – Remorse - Guilty plea – Youthful offender - Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr John Champion SC | Office of Public Prosecutions Victoria |
| For the Accused | Mr Colin Mandy | Galbally & O’Bryan Lawyers |
HER HONOUR:
Sam Sua, you have pleaded guilty to the assault of Christian Williams on 18 November 2014 in Dandenong Park, Dandenong.
You and a group of your associates were drinking in the park, and your offending occurred in the context of one or your associates, Robert Marshall, murdering Mr Williams by beating him to death. Mr Williams was a homeless man living in the park who was set upon by Marshall. The attack on Mr Williams was entirely unprovoked. He died pointlessly and tragically, and in terrifying circumstances.
For the reasons that I will give now, you will be ordered to serve a Community Correction Order for a period of two years subject to a set of special conditions that are directed to your rehabilitation and to punishing you and acting as a deterrent.
Circumstances of the offending
The facts upon which you are to be sentenced are set out in the Prosecution Opening. The matters alleged are not challenged by you.
Briefly described, the circumstances of your offending are as follows.
In late 2014, you were living in the vicinity of Dandenong Park. You were unemployed and a regular user of drugs and alcohol. At approximately 3.00pm on 18 November 2014, you went to the park to drink and socialise with a number of others. You gathered in the vicinity of the Soundstage. After drinking for approximately one hour, you or one of your group sent a message to Robert Marshall, inviting him to come to the park to drink with the group. Marshall responded that he had a Centrelink appointment and would attend following the appointment.
At approximately 4.00pm, Marshall arrived at the park and joined you and the others. You drank and socialised until around dusk when the alcohol ran out. You and four others walked to Dandenong Plaza, where two wine casks were purchased. You and three others left the Plaza and returned to the park with the alcohol.
By the time your returned to the park, Mr Williams had installed himself on the top right hand side of the Soundstage and was listening to music. Being homeless, Mr Williams had set himself up to sleep there. For a while, a couple of other people sat with Mr Williams, while another small group, including you and Marshall, sat at the bottom of the Soundstage talking among yourselves.
At some point, however, Marshall walked up the stairs of the Soundstage and stood over Mr Williams, making demands for his wallet and mobile phone. Unprovoked, Marshall hit Mr Williams about the head a number of times. Marshall was physically separated from Mr Williams, who left the Soundstage and walked away towards the Princes Highway. He was injured and scared at this point.
Marshall began to go after Mr Williams, but one of your group, Rex Lepupa, intervened, attempting to restrain him. They fell from the Soundstage, landing on a grassed area. Marshall got to his feet and ran after Mr Williams, repeating, ‘He’s going to the cops’. You and Lepupa ran after Marshall, who caught Mr Williams near some bushes north of the Soundstage and began punching him again.
By now, Mr Williams was pressed up hard against the bushes and had his hands out in an attempt to protect himself from Marshall. Marshall stood over him and punched him four to five times. Mr Williams did not fight back. Lepupa again attempted to restrain Marshall by grabbing him around the waist. Mr Williams did not get up or attempt to get away. By this time he had significant swelling to his face.
At this point, you became involved. You had caught up with the others, and Lepupa released his grip on Marshall in order to restrain you. Marshall dragged Mr Williams from the bushes and forcibly walked him back in the direction of the Soundstage. While this was happening, you attempted to strike Mr Williams on the face. You missed, but connected with your second and third attempts. Mr Williams began crying, asking, ‘What did I do?’. He had blood on his face. You then looped Mr Williams’ belt around his neck to pull him forward. However, Lepupa grabbed the belt and threw it on the grass.
That was the extent of your direct involvement in the assault on Mr Williams.
Marshall then took Mr Williams to a position directly beside the Soundstage and continued to assault him. You and Lepupa left the area and met up with others in your group behind the Soundstage. A few minutes passed before you returned to the front of the Soundstage, where Marshall was sitting on top of Mr Williams pinning him down and punching him repeatedly to the face and head. Mr Williams had lost consciousness. Lepupa unsuccessfully tried to stop Marshall, saying, ‘that’s enough, that’s enough’.
Lepupa and the others walked away distressed. You were observed going back and forth between the two groups. You were heard to say, ‘What the F are they doing? We didn’t come here for that’.
Eventually, Marshall got off Mr Williams, who remained motionless. Taking hold of one foot in each hand, Marshall dragged Mr Williams to a more discreet area of the park behind the Soundstage. There, Marshall continued his assault on Mr Williams. No-one intervened. All of you left the park.
Early the following morning, Mr Williams’ body was found by a man walking his dog in the park. Mr Williams was pronounced dead at that time.
Mr Williams’ death was caused by blunt force trauma to the head and neck and severe bleeding to the brain. Owing to the extent of the injuries sustained by Mr Williams, it was not possible to determine the extent of the injuries, if any, that you inflicted on him.
You were arrested on 27 November 2014 and interviewed about your involvement in the death of Mr Williams. You were released without charge. During the recorded interview, you gave a version of events in which you denied assaulting Mr Williams and stated that you attempted to separate the parties a number of times.
On 16 July 2015, you were charged with common law assault for your involvement in the circumstances surrounding the death of Mr Williams.
You entered an early plea of guilty.
The victim
Mr Williams was 43 years old at the time of his death. He grew up in a family of three children, spending much of his childhood in Noble Park. His parents separated when he was nine and when he was ten, he was struck by a car, resulting in a permanent brain injury and facial scarring. He had to learn to read and write again, and was left with an ongoing intellectual disability. He would permanently retain the cognitive functioning of an 11 to 12 year old.
As a result of his injuries, Mr Williams could not recognise social cues, was not particularly articulate and struggled with decision making. Not surprisingly, he left school at a young age and he then struggled with drug and mental health issues. However, in around 2002, Mr Williams formed a relationship and, in 2004, his son, Jack, was born. Mr Williams was very happy when Jack was born, and was a reliable and steady father figure, taking on the role of primary carer to Jack. When Mr Williams and his partner separated, Mr Williams was granted custody of Jack and returned to the family home in Narre Warren to raise Jack with the assistance of his mother.
Unfortunately, in 2013, there was some kind of family altercation, following which it was agreed that Mr Williams should not return to the family home until he got help. From this time until his death, Mr Williams slept rough in various locations in the Dandenong area.
Nonetheless, Mr Williams remained in close contact with Jack, walking him to and from school on a daily basis and returning to the family home every weekend to visit him. He took Jack to swimming lessons, and on outings such as fishing and to the cinema. He continued to be a positive influence on Jack. He was described as being like an overgrown kid who enjoyed doing children’s activities with Jack. He was also described as being loyal, kind hearted and trusting of everybody.
Objective seriousness of offending
Assault throws up a great variety of circumstances concerning culpability. In sentencing you, I must have regard to the nature and gravity of the offence, and to your culpability and degree of responsibility.
You assaulted Mr Williams by punching him twice in the face and by looping a belt around his neck.
The prosecution submits that your offending should be regarded as an example of common law assault falling within the highest range of seriousness because of a number of aggravating factors.
Your counsel submits that your moral culpability should be assessed at the lowest end for common assault. He told the Court that the basis for your plea to assault was an acceptance that there was no mistake in attributing the two punches to you, even though you do not recall having thrown them or having done anything with a belt. You do recall that Lepupa tried to help Mr Williams at the beginning of the assault and that you were ‘freaking out’ towards its conclusion. You were immediately shocked and dismayed by what had occurred and you have consistently expressed remorse for it.
Having regard to the agreed facts, there are a number of matters that bear upon my assessment of the seriousness of your offending.
You assaulted Mr Williams when he had already been exposed to a sustained and vicious attack from Marshall and was frightened and injured. Your conduct was contemptuous and humiliating, and included placing a belt around Mr Williams’ neck with the intention of pulling him along like an animal.
Mr Williams’ vulnerability at the time of the assault is an aggravating feature of your offence. He was a homeless man with an intellectual disability who was sleeping rough in the park when he was attacked. He did not defend himself, he cried and expressed disbelief at what was occurring.
The fact that the assault was unprovoked is also an aggravating factor of your offending.
I find, having regard to all of these factors, your offending to be in the mid-range of seriousness for common law assault. The assault by you was not prolonged or vicious – in fact, it could almost be described as momentary – but you took advantage of Mr William’s vulnerability and you treated him with contempt – as though he was worthless.
A number of mitigating factors have been raised, relating principally to your youth, the difficult circumstances in which you have grown up and the remorse that you feel.
It is necessary to first consider your personal history and circumstances.
Personal history and circumstances
You were 18 years old at the time of this incident. You have had a difficult young life and, at the time of the offending, you had serious problems involving drug and alcohol abuse. You were dislocated and lost, in trouble and frequently drunk.
Dr Mathew Barth, a psychologist specialising in the treatment and assessment of adults in the legal system, has reported on a psychological assessment carried out on you. His report describes your personal history, mental health status and the results of his assessment.
Your personal history for the purposes of this sentence has been derived largely from Dr Barth’s report, as you did not give evidence of that history yourself.
You were born in New Zealand, on 12 September 1996. Your father abandoned your mother when you were an infant, and you have had no contact with your father since. You have rebuffed his attempts to have contact with you and expressed anger and resentment towards him.
In 1997, you were sent to Australia to live with your grandparents, while your mother remained in New Zealand. You were raised by your Grandmother Fualilia Sua, from the age of 5 months.
Although your mother subsequently migrated to Australia, she became only spasmodically involved in your life, and this added further to your feelings of rejection and resentment. You attempted to live with your mother and stepfather for a period during your teenage years, but you left their home and returned to your grandparents’ care. Despite your grandparents’ attempts to give you a decent upbringing, you started hanging around with the wrong people early in your teenage years and became heavily involved in alcohol and drug use. You told Dr Barth that you spent most of your teenage years hanging out on the streets with kids like you. You were expelled from secondary school for fighting with other students and for truancy. You commenced studies in building construction at TAFE several times, but your use of alcohol and cannabis derailed these efforts. Your only employment has involved short periods working in labouring positions. You are currently unemployed and being supported financially by your grandparents.
You described to Dr Barth a history of emotional instability since childhood. Dr Barth reported that you felt sad and angry at having been separated from your parents, and you experienced a range of behavioural disturbances in response to intense mood swings. You engaged in a variety of ‘acting out’ behaviours as an expression of your depressive symptoms, including attempting to commit suicide, engaging in self-harm and abusing substances.
You told Dr Barth that you started drinking alcohol when you were 13 while wagging school. Your alcohol consumption increased throughout your teenage years, culminating in you drinking to excess every second day. You would regularly black out due to heavy drinking.
You started smoking cannabis when you were 14. Your cannabis use rapidly escalated and, by the age of 15, you were smoking up to two grams of cannabis a day.
Dr Barth concluded that your alcohol and cannabis use have been ‘intensely problematic’ and have adversely affected every area of your life. Your substance abuse is sufficiently severe to warrant diagnoses of Alcohol Use Disorder and Cannabis Use Disorder by DSM-5 criteria. According to Dr Barth, your Alcohol Use Disorder would currently be described as moderate, while your Cannabis Use Disorder would be described as severe.
Dr Barth subjected you to a series of tests and found noteworthy depressive and anxiety-related symptoms. He concluded that your symptoms are somewhat more intense than typically seen in individuals in your predicament, and that your symptoms are sufficiently severe to warrant the diagnosis of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct by DSM-5 criteria.
Overall, Dr Barth described you as a very immature and unsophisticated, with a below average intelligence. He stated that your persisting immaturity means that your personality is still in the process of developing, and that you have significant difficulty coping with typical adult responsibilities. Your interpersonal and behavioural adjustment has been problematic, and you require assistance to manage these features in order to achieve a more productive life in the community and reduce your risk of engaging in further criminal activities.
On a positive note, you have strong support from your grandparents and you have begun the process of engaging in community services to address your issues. You have expressed your motivation to live a more productive life in the community.
Previous offending
You have had a number of previous interactions with the criminal justice system. All were in the Children’s Court, unsurprisingly given your age. Your counsel submitted that while this previous offending was relevant to your sentence, you had difficulty recalling the detail of the events in question. They all apparently involved alcohol, ‘acting out’ and some violence.
The Court has been provided with a letter dated 30 November 2015 from Bridget McGeoch, the Acting Team Leader for the Southern Melbourne Case Management Team of the Youth Justice program, providing information about your involvement with Youth Justice following a string of court appearances.
You first became involved with Youth Justice in July 2012 when you were placed on a deferral of sentence. You again became involved with Youth Justice in 2013 when you were placed on a further deferral of sentence, and then on a Probation Order for a period of six months. You engaged in further offending and the Probation Order was breached. In February 2014, you were sentenced to three further Probation Orders. You again engaged in further offending, which placed you in breach of one of the Probation Orders, and you were sentenced in September 2014 to two concurrent Youth Supervision Orders. You have since completed these Orders, the latest one expiring in September 2015.
You were referred to a number of support services during the period of your involvement with Youth Justice. You completed counselling through the City of Greater Dandenong GRIPP program, attending the required ten sessions and engaging positively. You were also referred to the Youth Support and Advocacy Service (‘YSAS’) for drug and alcohol counselling, and you completed this counselling in 2013. You have also been referred to a range of recreational and educational programs throughout your involvement with Youth Justice.
Ms McGeoch states that your compliance and engagement with Youth Justice has been positive and you have consistently presented as polite and friendly, and been open to addressing all aspects of your life.
The Court has also been provided with a letter from YSAS Dandenong about your participation in its programs and your Youth Outreach Worker attended Court to give evidence on your behalf. I will refer to her evidence when I consider your prospects of rehabilitation.
Remorse
Your counsel submitted that the events in question have had a profound effect on you and that you are truly remorseful. You have stopped ‘hanging out’ with the crowd at the park, you live at home with your grandparents, your two step sisters and two of your Aunt Tala’s five children (she having moved out with three of her children very recently). You have spent the past 18 months largely at home and out of trouble, looking after younger family members. You drink much less now, but continue to suffer from anxiety and depression.
Dr Barth recorded that in the wake of your offending, you have had recurring nightmares of the incident. You experience feelings of guilt and suffer disturbed sleep.
I accept that you are truly remorseful for your conduct. Your plea, your consistently expressed remorse and the way in which you have changed your lifestyle since the death of Mr Williams are all indicative of your genuine remorse.
Youth and prospects of rehabilitation
Your youth and your prospects of rehabilitation are important sentencing considerations. The youth of an offender should be the first consideration for a sentencing court and, in the case of a youthful offender, rehabilitation will usually be far more important than general deterrence. The courts recognise the potential for young offenders to be redeemed and rehabilitated[1] and that effective rehabilitation of a young offender protects the community from further offending.[2] Courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender’s prospects of rehabilitation.[3]
[1]R v McGaffin (2010) 206 A Crim R 188, [69].
[2]Azzopardi v R (2011) a Crim R 369, [35].
[3]Ibid [36].
Dr Bart expressed the view that your drug and alcohol use, propensity for impulsive behaviour, simplistic social reasoning and your vulnerability towards engaging with negative peer groups all require intervention and close management. He has identified a number of essential components in any intervention offered to you, including substance abuse treatment, mental health treatment, anger management training and vocational training.
Ms Amanda Healey, a Youth Outreach worker from YSAS Dandenong, gave evidence about your involvement with programs offered by YSAS, stating that you have been open and honest during discussions about your drug and alcohol use, mental health, future goals and family relationships. She said that you present as an engageable young man who is reflective, insightful and committed to making positive changes in your life. You have acknowledged poor choices in friendships and a lack of maturity, that has, in the past, held you back from making changes and led to further offending. According to Ms Healey, you show insight into your own behaviour. Ms Healey states that YSAS is committed to supporting you to achieve your goals, to re-engage with psychological counselling, and to focus on positive recreational activities and links to the community.
There is obviously some tension between Ms Healey’s assessment of you as reflective and insightful and Dr Barth’s assessment that your drug and alcohol use, propensity for impulsive behaviour, simplistic social reasoning and your vulnerability towards engaging with negative peer groups all require intervention and close management. I accept the opinion of Dr Barth as to your level of maturity, capacity for reflection and impressionability, all of which affect your prospects of rehabilitation. I consider that the prospects of your turning your life around so that you can contribute positively to the community will depend on close supervision and management, at least for the foreseeable future.
However, both Ms Healey and Dr Barth refer to the fact that you want to change your life and that you have been taking positive steps to do so.
I therefore consider your prospects of rehabilitation to be good, providing that you receive the right kind and level of support. In particular, your continued reliance on drugs is of concern and needs urgent and intensive treatment. You have a compelling need for substance abuse treatment if you are to be rehabilitated. Dr Barth recommended that such treatment include a lengthy period of highly intensive and closely structured and supervised detoxification program with regular urine testing to enforce prolonged abstinence, and that there should be clear consequences for any non-compliance on your part.
Victim impacts
Victim impact statements were read in court by Mr William’s sister, Mandy Stevens, and his brother, Brent Williams.
Mr Williams’ brutal death and the circumstances surrounding it have had a terrible impact on his family. They are devastated. He has left behind a young son who feels and will continue to feel the loss of his father profoundly.
You did not cause Mr Williams’ death, but briefly contributed to the violent and terrifying circumstances in which it occurred. However, one particular impact on family members that is relevant to your offending is that the family no longer feels safe in the neighbourhood. This has affected Ms Stevens’ ability to go about her daily life. Said she feels like she lives in a prison.
I have had regard to the impact of your offending on Mr Williams’ family in sentencing you.
Sentence
The offence of common law assault carries a maximum penalty of five years’ imprisonment.
In sentencing you, I must consider the objective nature and gravity of your offending and your moral culpability.
I have found the seriousness of your offending to fall in the mid-range for common law assault, principally because of the vulnerability of the victim and the terrifying circumstances in which it occurred. Just punishment, denunciation of your conduct and general deterrence are sentencing considerations in this case. However, for the reasons I have given, your youth and your need for rehabilitation must be the primary sentencing considerations.
I also give weight to your evident remorse and to your early plea of guilty which, I accept, reflects your remorse and has utilitarian value in that it avoids the need for a trial.
In balancing all of these considerations, you will be given a sentence that principally reflects your youth and your prospects of rehabilitation. But it must also effect just punishment and serve as a deterrent to you and others.
Given your emotional and psychological difficulties, your lack of maturity and direction, your long history of substance abuse, and your lack of education and skills, your rehabilitation will be greatly assisted by the programs, treatment, supervision and educational opportunities available through a Community Correction Order.
You would not have such opportunities in prison. Without a structured rehabilitation program, there is a good chance that you will relapse into anti-social behaviour and be lost to the community. I consider the imposition of a Community Correction Order to be in the interests of the community as a whole, in that, with suitable conditions, it offers a real chance of rehabilitation to a person who might otherwise fall completely by the wayside and cause ongoing damage to the community at large.
Your offending is not so serious that nothing short of a term of imprisonment will suffice to satisfy the requirements of just punishment. A Community Correction Order is intrinsically punitive and is capable – depending on the length of the Order and the nature and extent of the conditions imposed – of being highly punitive. The mandatory conditions attached to a Community Correction Order by force of s 45(1) of the Sentencing Act will affect your liberty and autonomy, and special conditions can and will be crafted to assist your rehabilitation and to punish you. You will be restricted in what you can do and be required to do things that you will find onerous.
The Court asked for you to be assessed to determine your suitability for a Community Correction Order. Community Correctional Services has assessed your general risk of re-offending as high, according to the level of service risk assessment tools. However, you have been assessed as suitable for a Community Correction Order with an unpaid community work condition, a treatment and rehabilitation condition and a supervision condition recommended. The treatment and rehabilitation condition would include drug assessment and treatment, alcohol assessment and treatment, mental health treatment and offending behaviour programs.
A Community Correction Order for a period of two years, with an unpaid community work requirement of 150 hours, along with a treatment and rehabilitation order and a supervision order is appropriate in that it gives you sufficient time to complete treatment and rehabilitation programs and is proportionate to the gravity of your offending and moral culpability.
Mr Sua, you are convicted of common assault. Pursuant to s 37 of the Sentencing Act 1991, you are ordered to serve a Community Correction Order for a period of two years commencing on 1 May 2016. The Community Correction Order includes the following special conditions:
(a) You must perform 150 hours of unpaid community work over a period of 24 months as directed by the Regional Manager;
(b) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
(c) You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
(d) You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
(e) You must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, educational, cultural and personal development programs as directed by the Regional Manager.
(f) You must engage in any program that addresses factors related to your offending behaviour, as directed.
(g) You must be under the supervision of a Community Corrections Officer for a period of 24 months.
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