R v Sumeo

[2002] NSWCCA 271

CITATION:	Regina v Sumeo [2002] NSWCCA 271 revised - 25/07/2002
FILE NUMBER(S):	CCA 60558/01
HEARING DATE(S):	27 June 2002
JUDGMENT DATE:	27 June 2002
PARTIES :	Regina v Falaniko Sumeo
JUDGMENT OF:	Smart AJ at 1, 30; Blanch AJ at 29

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0198
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

COUNSEL :	(A) D N Stewart (C) L M B Lampratti
SOLICITORS:	(A) Ross Hill Solicitors (C) S E O'Connor
CATCHWORDS:	Sentencing - grave instances of aggravated robbery and maliciously inflicting grievous bodily harm with intent - sentences not excessive
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Nil
DECISION:	Leave to appeal granted - Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

SMART AJ

BLANCH AJ

Thursday, 27 June 2002

REGINA v FALANIKO SUMEO

JUDGMENT

1. SMART AJ: Falaniko Sumeo seeks leave to appeal against the severity of the following sentences:

(a) Robbery using corporal violence with the infliction of grievous bodily harm
- Imprisonment for a fixed term of four years from 23 September 2000.

(b) Maliciously inflict grievous bodily harm with intent to inflict such harm
- Imprisonment for eleven years from 23 September 2002 with a
non-parole period of seven years to expire on 22 September 2009.

2. Thus, the effective total head sentence is thirteen years and the effective total fixed term and non-parole period amount to nine years. Both offences carry a maximum penalty of twenty-five years. The applicant was arrested and taken into custody on 23 September 2000. He pleaded guilty to both offences.

3. Aggravated Robbery

On 23 September 2000 the applicant and his brother alighted from different carriages of a train at Macquarie Fields station shortly after 6.30 p.m. The applicant was moderately affected by alcohol. The victim, Mr Jensen, aged fifty-five years, was sitting on a seat on the platform drinking a bottle of beer. The victim said hello to the applicant and his brother. The applicant said to the victim, "Do you want to have a go?" The victim replied, "Back off, back off, I don't want to fight." The applicant's brother, who had kept walking, retraced his steps and pulled the applicant away from the victim. The victim made his way across Railway Parade towards his home. The applicant followed him, caught up with him, and punched and kicked him. The victim fell to the ground. The applicant smashed a bottle of beer across the victim's head and stomped on the victim's head. The applicant's brother interceded and tried to persuade him to leave. Instead, the applicant rummaged through the victim's pockets, removed his wrist watch and walked away. The police arrested the applicant nearby.

4. The victim suffered middle-third of the face fractures and a complicated laceration of the right ear. The victim underwent surgery, with steel plates and screws being inserted into his cheeks. He suffers from headaches and has to regularly bathe his eyes, which are sunken in. He had a lot of pain and swelling to his neck and face. He spent a week in hospital.

5. In his second record of interview with the police the applicant stated that four other men had jumped on the victim's head. This was incorrect.

6. Maliciously Inflicting Grievous Bodily Harm with Intent

About 1 a.m. on 30 April 2000 the victim, Adrian Atkinson, walked on to the platform of Narwee railway station. The applicant and a female were sitting on a seat on the station. The applicant approached the victim and punched him on the face, causing him to fall to the ground. The applicant kicked the victim to the head and body. Video surveillance recorded the incident. Gratuitous violence was inflicted on the victim, who lay apparently unconscious on the ground after the first few blows. The applicant stomped on the victim's head a number of times, pushed the victim off the platform onto the railway tracks below, and walked away. The victim was left lying unconscious across the railway tracks.

7. The applicant went through the victim's bag. A witness who heard screaming and saw the applicant hitting the victim and throwing him on to the tracks ran to the railway station and, with the assistance of another male, removed the unconscious victim from the railway tracks at 1.08 a.m. The next train was due at 1.12 a.m. but there is no evidence that the applicant knew of that.

8. On admission to hospital the victim had multiple lacerations and contusions to his scalp, face, chest and back and a right parietal occipital subdural haematoma with midline shift and swelling of the brain. There was extensive scalp haematoma. He was in St George Hospital from 30 April to 20 May 2000, when he was transferred to the Brain Injury Rehabilitation Unit, Liverpool Hospital. He remained there until 12 June 2000, when he was admitted to the Transitional Living Unit of the Brain Injury Service.

9. The blows to his head have resulted in a serious brain injury with long term, if not permanent, effects; that is, impairment in the areas of emotional, behavioural and higher intellectual (cognitive) functions. He is at increased risk of post-traumatic epilepsy.

10. The applicant was born on 5 May 1978. He has no prior criminal record of consequence. He is the eldest of six children of Samoan parents. His parents and his wider family are supporting him. At the time of his arrest he was living with his parents. He left school at 17 years of age while in year 12 without obtaining the Higher School Certificate. However, he remains illiterate and has problems with verbal communication. Since leaving school he was generally employed until about a year before the offences. Then he received unemployment benefits.

11. The applicant is mildly intellectually retarded. He is operating at a level lower than ninety-nine per cent of the population. The judge found that the applicant has a problem with alcohol abuse and that both offences occurred whilst he was heavily intoxicated.

12. Dr W Lucas, psychiatrist, has written:

"The principal psychosocial factor giving rise to each of his offences is intoxication with alcohol."

13. The applicant expressed remorse to the Probation and Parole Officer and was concerned by the extent of the injuries to the victims. That officer made this assessment:

"Mr Sumeo presents as a man who has not had to question the nature of his lifestyle, but it would appear prior to the offences Mr Sumeo did have a serious alcohol problem for which he is yet to be fully assessed. The offender does demonstrate an immature attitude and his level of insight into his actions is limited.
In the remand period the offender has commenced to utilise his time in custody to address his problem. It is hoped that he can maintain this current resolve. Upon release the offender could benefit from ongoing support and counselling."
and :
"Probation and Parole Supervision .
Mr Sumeo would benefit from supervision by this Service. Such supervision would focus on addressing the offender's alcohol issues and anger problems and be conditioned that he:


1. Undertake psychological counselling/treatment as directed.

2. Attend Drug and Alcohol Counselling ad directed

3. Complete Anger Management programs"

Dr W Lucas has written:

"To reduce the chances of reoffending Mr Sumeo requires a consistent program of supervision and support His family should be involved and his parents may benefit from some advice and education about his problems, including his intellectual ones.
Mr Sumeo should be afforded whatever educational assistance is appropriate after a careful assessment of his needs. I suspect that his difficulties have not been fully recognised by his family or perhaps dealt with during his education.
Mr Sumeo needs, as suggested by Professor Hayes, more structure in his life. After release he will need to be occupied, employed in an occupation which does not expose him to the risk of confrontation or alcohol consumption, and he should choose his associates wisely. It is important that he is given the opportunity to gain more satisfaction from his life and to have better ways of dealing with the problems which arise because of intellectual disability.
There will have to be constraints while he is under supervision.
Mr Sumeo's eligibility for intellectual disability services should be investigated as soon as possible.
Abstinence from alcohol and drugs remains the most important step in Mr Sumeo's rehabilitation and the prevention of further offences. If he continues to abuse alcohol and drugs his prognosis is likely to be poor."

14. The judge gave the applicant a twenty-five per cent discount on both sentences for the utilitarian value of his early pleas of guilty. She made a further allowance for remorse.

15. The judge had regard to the offender's youth, but she held that the objective gravity of the two offences and considerations of general and specific deterrence demanded that lengthy sentences be imposed. She correctly found that there were special circumstances. They included that this was the applicant's first time in custody, the partial accumulation of the sentences, and the necessity for an extended period on parole to foster the applicant's rehabilitation. She took the principle of totality into account.

Appeal ground one reads:

"Her Honour erred by failing to address or take into account the appellant's comparatively insignificant criminal history and in particular the absence of prior convictions for matters of violence."

16. Reliance was placed on s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, which provides that the court must take into account the character, antecedents, cultural background, age, means and physical or mental condition of the offender.

17. It is true that the judge did not mention specifically the character and antecedents of the applicant. However, she was aware of them because she found as a special circumstance that this was the applicant's first time in custody. She also briefly summarised the salient facts of his life.

18. The applicant submitted that was there was no prior history of violence, very little, if any, premeditation, both offences were committed while the applicant was heavily intoxicated, he suffered from mild intellectual retardation, he was comparatively young and had clearly expressed remorse and that these factors in combination called for some weight to be given to the applicant's prior history. It could not be ignored.

19. I do not think the judge ignored it. There was simply no need for the judge to refer to what was common ground, namely, that the applicant did not have previous convictions for violence. However, it was not a factor to which much weight could be given with these two grave offences committed about five months apart. Some weight should be given to it.

20. Appeal ground two reads:

"Her Honour erred in failing to adequately and properly consider matters relevant to the applicant's prospect of rehabilitation."

The applicant relied on s 21A(2)(j) of the Act. He submitted that the court should have given specific consideration and weight to the prospects of rehabilitation and not have dealt with the matter as cursorily as she did. There was evidence dealing with that matter. The appellant submitted:

"In regard to the offender's prospects of rehabilitation, it is submitted that the following matters are relevant and should have been given greater weight. The appellant was a relatively young man with no prior history of violence. In growing up, he had to make two cultural adjustments, firstly in a move from West Samoa to New Zealand when five years, and secondly a move to Australia when 15 years. He is illiterate, and has been diagnosed as mildly intellectually retarded. Prior to age 15, he was involved in sport and church activities including singing in the choir. After coming to Australia, the appellant, initially influenced by his cousin, started drinking. By age 17, he was regularly drinking heavily. At the time of the offences, he was heavily intoxicated and had little recollection of the events. He has demonstrated a commitment to rehabilitation whilst in custody. The offences involved little or no premeditation. Whilst in custody awaiting sentence, he has not been involved in incidents of violence, and has been given positions of trust. A letter from the Chaplaincy Service dated 7 August 2001 praises his conduct as consistent, conscientious, enthusiastic, a positive influence on other inmates, and reliable. The appellant has demonstrated genuine remorse since his arrest. He pleaded guilty at the earliest opportunity."

21. The material on the issue of rehabilitation indicated the serious problems which had to be overcome. There was a serious question whether the necessary resources would be available in gaol to progress the applicant's rehabilitation – see the report of Dr W Lucas. What was clear was that the applicant would need a lot of instruction, assistance and support to become rehabilitated. His own resources to achieve rehabilitation were limited. While the question of rehabilitation could have been dealt with at more length and more comprehensively, the judge did consider the matter. However, I am of the view that insufficient weight was attached to the aspect of rehabilitation and the particular matters to which I have earlier referred.

22. Appeal ground three reads:

"The sentence is manifestly excessive."

The applicant submitted that the total sentences demonstrated a failure to properly weigh all relevant matters, including those mandated by s 21A of the Act. It was submitted that the applicant's lack of intellectual capacity had a significant impact on his development and productive capacity. Further, while the judge had regards to psychological and psychiatric reports tendered, there was no indication in her remarks that she gave them any weight.

23. The criminality involved in these offences was of a very high order. In particular, beating a man unconscious and throwing him on to the railway tracks is a crime of the gravest kind. I do not think that the head sentences which the judge imposed in respect of each offence are open to attack. Indeed, greater sentences could have been imposed. Lesser sentences could not have been imposed. Certainly the sentences imposed were within permissible limits.

24. Similarly, the judge's decision to partially accumulate the sentences is not open to attack. The only question which arises is the length of the non-parole period. The judge took that into account when dealing with the sentence for the graver offence by imposing a sentence of eleven years with a non-parole period of seven years. It is true that the non-parole period is overall more than three-quarters of the total of the sentences. Three-quarters of eleven years is eight years three months.

25. On his release after a lengthy period in prison the applicant is going to need ongoing counselling, support and supervision. As Dr Lucas pointed out, some rehabilitative efforts may have to wait until close to or after his release. His parents will need advice and education about the applicant's problem so they can support him. He has limited personal resources and accordingly rehabilitation is likely to take some time.

26. I have not overlooked the applicant's relative youth and that prior to the offences in question he had not committed any offences involving violence and that his previous two offences were of no consequence when dealing with the subject offences.

27. While a longer non-parole period would have been advantageous, I am of the opinion that, having regard to the gravity of the offences, and notwithstanding all the other matters to which I have referred, a non-parole period of less than nine years in total could not have been imposed.

28. I propose the following orders: Leave to appeal granted, appeal dismissed.

29. BLANCH AJ: I agree.

30. SMART AJ: The orders of the court will be as I have proposed.

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