R v Tuimauga
[2003] VSCA 218
•9 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 244 of 2003
| THE QUEEN |
| v. |
| ANIPALE TUIMAUGA |
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JUDGES: | CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 December 2003 | |
DATE OF JUDGMENT: | 9 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 218 | |
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Criminal Law – Sentence – Intentionally causing serious injury – Relevance of provocation – Evidence of good character and remorse – Whether sentence of 18 months with minimum of 9 months manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Solicitor for Public Prosecutions |
| For the Appellant | Mr N. Goodenough | Victoria Legal Aid |
CHARLES J.A.:
The appellant, who is now aged 33, pleaded guilty in the County Court at Melbourne on 28 August 2003 to one count of intentionally causing serious injury. The maximum penalty for this offence was then 20 years imprisonment. After a plea during which Danny Mardini, the managing director of a security company and the Reverend Oneseno Pulepule, the pastor of the Samoan Assemblies of God Church in Port Melbourne were called to give character evidence, the applicant was sentenced to 18 months imprisonment, nine months of which were suspended for two years. The appellant was granted leave to appeal pursuant to s.582 of the Crimes Act on 3 October.
The circumstances giving rise to this offence were as follows: the appellant had been employed as a process worker and machine operator by Sutton Tools for a period of three years, and worked an afternoon shift from 3 p.m. until 12 midnight. The victim, Kemal Taker, also worked for Sutton Tools, and early in March 2003 Taker had received a promotion to section leader, becoming the appellant's immediate supervisor. When the appellant left work on Friday 21 March he believed that he was to work overtime the following day from 3 p.m. until midnight. The time of the overtime shift was, however, changed to become from 12 noon to 5 p.m.. Taker said that at 9 a.m. on Saturday morning he sent an SMS message to the appellant to advise him of the change of work times on that day.
When the appellant had not arrived for work on Saturday he received a telephone call at 2.30 from one of the supervisors who said that Taker and another employee had started work at 12 noon and were working until 5 p.m. The appellant said that he had not received the SMS message from the section leader prior to the telephone call as he had left his mobile telephone in his car.
There followed a confrontation at work the next Monday afternoon. Shortly before starting his shift at 3 p.m., the appellant, obviously upset, confronted Taker about what had happened on the Saturday. According to Taker, the appellant said to him, "What happened on Saturday?" Taker replied, "I sent you a message." the appellant then said, "What message? Who do you think you are, a big fuckin' boss?" Taker replied, "I am a big fuckin' boss.". Mr Goodenough in this court submitted that the appellant in his record of interview had not accepted that he used the swearing expression first, but no such contention appears to have been raised during the plea.
The appellant then punched Taker with a clenched fist to the left cheek. Taker was disorientated by the punch, but tried to run away and fell through an open roller door to the outside of the factory. The victim was unconscious when he hit the ground and his next memory was of waking up in an office with an ice pack on his face. However, when the victim was lying face down on the concrete floor, unconscious and groaning, the appellant crouched down and punched him several times to the face with a clenched fist. Evidence was given by a witness that he tried to pull the appellant away to stop him from swinging at the victim. But whilst the victim remained unconscious on the ground the appellant, who was wearing steel-capped work boots, then turned around and stepped towards Taker and kicked him in the head.
The evidence of witnesses differed as to the number of blows the appellant struck to the face of the victim; one witness saying there were four to six blows while another said he was hit twice. The appellant in his record of interview admitted punching the victim twice to the face with a clenched fist and admitted that the force of the punches had caused victim to move backwards. The appellant also admitted punching the victim twice while he was lying outside and not defending himself and that he kicked the victim in the head. The victim suffered a fractured cheek bone, lacerations to the left and right temples and both his eyes were blackened. He had a swollen face, lacerations to the right-hand side of his top lip and bruising on the right-hand side of the neck at the top.
The record of interview demonstrates that the appellant made very open and frank admissions to his conduct. He pleaded guilty at the earliest opportunity. The sentencing judge said of the appellant's answers in the record of interview that he was, even at that stage, feeling regret and remorse. The evidence before the judge showed that the appellant came from a large and supportive family, had a satisfactory educational career and was not a disruptive or difficult student. He came to Australia in about 1997. Here his work record has been good and he has always been fully employed in an attempt to support his wife and two children. Supportive character evidence was given by Mr Mardini of the appellant's work as a crowd controller, and by Pastor Pulepule of his close association with the church. All the evidence suggested that the appellant has never previously shown any signs of aggression or violence and that what happened on this occasion was totally out of character.
In these circumstances, it was submitted on the plea that the judge should permit the appellant to serve a custodial sentence by way of an intensive corrections order. His Honour, however, rejected the submission saying:
"This was an extremely serious offence. I have outlined the details of it because of the level of wanton and undeserved violence associated with it. The most remarkable feature is the departure between the way you behaved on this occasion and everything that you have demonstrated in the rest of your life, but the fact is that this is the way you did behave on this occasion and it was extreme violence.
It is not uncommon for extreme violence to be the subject of charges before this court. Almost always, however, they seem to be associated with alcohol or drugs or some other factor. No such explanation is provided here. That does not mean that the offence is worse, only that it is even more puzzling as to why your behaviour was so different on this occasion to everything you have demonstrated over a period of years.
It is hard to understand why this offence was committed but the fact is it was committed and it was committed by you without any justification whatsoever. It was a case of extreme violence. I am required to take into account what is referred to as the factor of personal deterrence, to impose a sentence that deters you from re-offending."
The judge took the view that the incident was exceptional and unlikely to be repeated. His Honour said he was also required to take into account general deterrence. His Honour then said he felt unable to accept the submission of the appellant's counsel because of the "savagery of the blows you inflicted on the victim here and the effect that those blows have had on him".
The appellant now appeals on two grounds: first, that the sentence was manifestly excessive in that the judge failed to give any or any sufficient weight to the appellant's prior good character; and secondly, the judge erred in failing to consider the question whether the appellant was provoked by the victim. It is convenient to take the second ground first.
In this Court, Mr Goodenough submitted that the judge was in error in not determining whether there was any provocation in the form of swearing. He did not suggest that the alleged swearing could on any view be said to justify the assault. It was put, however, that the question of provocation was a matter relevant to the question of sentencing and reliance was placed on the R. v. Okutgen.[1]. He submitted that the judge erred in failing to consider the material presented on behalf of the appellant regarding the cultural sensitivity to swearing. For example, Pastor Pulepule had said during evidence on the plea that swearing was regarded as "very disrespectful, it's very serious, very serious in our community and our, especially the church". He submitted that the explanation given by the appellant in his record of interview was a relevant factor to be taken into account in determining the sentence. There was, so the argument ran, an evidentiary issue of importance to resolve on the question of swearing which was not considered by the sentencing judge.
[1](1982) 8 A.Crim.R 262 per Starke, J. at 264
In my opinion, there is nothing in this point. The judge in sentencing reasons referred expressly to the fact that "Taker said something that in some way provoked you". Shortly afterwards His Honour mentioned that "There is a cultural sensitivity in your community about swearing; great offence is taken to it". His Honour was therefore plainly aware of the claim of provocation and the cultural sensitivity in the Samoan community to swearing. The judge's sentencing reasons show that these matters were in fact taken into account.
The judge said that one of the most striking features of this case was the innocuous nature of what was said. His Honour said also that any cultural sensitivity in the community "does not even begin to justify what subsequently occurred". Furthermore one might add that the appellant himself appears to have been the one who first used the swear word to which cultural sensitivity is now said to be attached by the Samoan community. The victim's response was merely to repeat back to the appellant the words which had just been put to him. Even if this was not so, the words used by the victim provided no justification for the appellant's conduct.
There is nothing in the judge's reasons to suggest that his Honour regarded the question of provocation as irrelevant on the question of sentencing. I agree entirely with the judge's comments. The expressions used by the victim were plainly not seriously provocative even if they did include a swear word and even if there was cultural sensitivity in the appellant's community about swearing. Ground 2 fails.
The complaint of manifest excess is that the judge failed to give sufficient weight to the appellant's prior good character. The argument of Mr Goodenough was based first on the evidence of Mr Mardini and Pastor Pulepule. It was submitted that Mr Mardini's evidence was very powerful in the context of the appellant's employment as a crowd controller. It was put that even in the difficult and potentially violent workplace environment of a crowd controller he had always been even-tempered and polite. Emphasis was also placed on Pastor Pulepule's evidence which showed that the offending was completely out of character, exceptional and unlikely to be repeated.
Accordingly, it was submitted that the sentence imposed did not adequately reflect the previous good character of the appellant and if appropriate weight had been given to his good character then a sentence should have been imposed which
did not involve an immediate term of imprisonment or alternatively he should have received a much shorter term. It was submitted that the appellant's good character in this matter was a very significant factor.
It plainly cannot be argued that the judge failed to take into account the appellant's good character. His Honour went to considerable lengths not only to mention the evidence which had been given by the two witnesses on the plea but also to set out the circumstances of the appellant's life, his lack of prior convictions, the fact that the offending was out of character, exceptional and unlikely to be repeated and that the appellant was of good character. The matters on which Mr Goodenough relied were dealt with expressly, and carefully considered by the judge.
The question whether a sentence is manifestly excessive is not capable of lengthy argument. The present case was one of extreme violence, committed without any real justification. Specific and general deterrence were important factors in sentencing. In particular, the judge said that the real reason he was unable to accept defence counsel's submissions was "the savagery of the blows that you inflicted on the victim here and the effect that those blows have had on him". Accordingly, his Honour considered that only a sentence that required the appellant to be imprisoned for some period of time was adequate.
In my opinion, it is quite impossible to say that the sentence imposed was beyond range. Indeed, it might well have been said to be a lenient sentence.
The appeal should be dismissed.
CHERNOV, J.A.:
I agree.
ASHLEY, A.J.A.:
I agree.
CHARLES J.A.:
The order of the court is that the appeal be dismissed.
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