Ramos-Malo v The Queen

[2021] NSWCCA 49

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ramos-Malo v R [2021] NSWCCA 49

Hearing dates:

1 March 2021

Date of orders:

31 March 2021

Decision date:

31 March 2021

Before:

Gleeson JA at [1]
Harrison J at [1]
Bellew J at [1]

Decision:

(1)      Grant leave to appeal.

(2)      Allow the appeal.

(3)      Quash the sentence imposed by his Honour Judge Bennett SC on 4 December 2019 and in lieu thereof sentence the applicant to an aggregate sentence of 8 years imprisonment commencing on 8 September 2018 with a non-parole period of 4 years and 9 months expiring on 7 June 2023.

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – parity – whether applicant has a justifiable sense of grievance having regard to the sentence imposed on a co-offender

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

DS v R [2017] NSWCCA 37

JNM v R [2014] NSWCCA 297

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 11

Category:

Principal judgment

Parties:

Dahcell Marco Charlton Ramos-Malo (Applicant)
The Crown (Respondent)

Representation:

Counsel:
L Rowan (Applicant)
K Jeffreys (Respondent)

Solicitors:
AC Law Group (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/224415; 2018/275659; 2017/103312

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Glover; R v Ramos-Malo [2019] NSWDC 789

R v Misa; R v Ramos-Malo; R v Vaafusuaga [2019] NSWDC 788

Date of Decision:

04 December 2019

Before:

Bennett SC DCJ

File Number(s):

2018/224415; 2018/275659; 2017/103312

Judgment

1. THE COURT: Dahcell Marco Ramos-Malo seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him by his Honour Judge Bennett SC at the Sydney District Court on 4 December 2019. Mr Ramos-Malo pleaded guilty and was sentenced for four offences, receiving an aggregate sentence of 10 years imprisonment commencing on 8 September 2018 with a non-parole period of 6 years expiring on 7 September 2024.

2. The offences for which Mr Ramos-Malo was sentenced, the maximum penalties and his Honour’s indicative sentences, are described in the following table:

Offence	Maximum penalty and standard non-parole period	Sentence indicated
Assault occasioning actual bodily harm in company (on 21.7.18: victim Anthony Hayward) s 59(2) Crimes Act 1900	7 years	2 years 7 months
Wound with intent to cause grievous bodily harm (on 21.7.18: victim Troy Taylor) s 33(1)(a) Crimes Act 1900	25 years SNPP 7 years	8 years (NPP 5 years)
Assault occasioning actual bodily harm in company (on 21.7.18: victim Shayne Turner) s 59(2) Crimes Act 1900	7 years	3 years
Robbery in company (on 8.9.18: victim Brendan Paton) s 97(1) Crimes Act 1900	20 years	5 years

3. Mr Ramos-Malo’s notice of appeal was filed out of time. The Crown does not oppose a grant of leave. Mr Ramos-Malo relies upon the following grounds:

Ground 1: His Honour erred in his assessment of the starting point for the indicative sentence on the robbery in company by misapplying the principles in Henry as they relate to an early plea of guilty and discount for the utilitarian value of the plea.

Ground 2: His Honour failed adequately to apply the principles of parity to his indicative sentences for robbery in company.

Ground 3: Mr Ramos-Malo has a legitimate sense of grievance having regard to the sentence imposed on Jimmy Vaafusuaga.

Ground 4: His Honour failed properly to apply the principles of totality.

Ground 5: The sentence imposed by his Honour was manifestly excessive.

Facts

4. His Honour recited the agreed facts in considerable detail. It is sufficient for present purposes to refer to the following matters.

5. On the evening of 20 July 2018, Troy Taylor and Anthony Hayward attended the Carousel Inn at Rooty Hill. They drank alcohol and became intoxicated. At around 1.00am, the men became involved in what was then limited to a heated verbal exchange in the hotel gaming area with Salec Sua. Shortly thereafter, Mr Taylor and Mr Hayward were confronted in the outside gaming area of the hotel premises by Mr Sua, Mr Ramos-Malo, Mr Vaafusuaga, Pio Misa, Timothy Willett and a man called Lausii.

6. In due course, Mr Misa hit Mr Hayward a number of times with a wooden chair leg. Mr Hayward sustained lacerations to his head but declined a paramedic’s advice to attend hospital.

7. Mr Ramos-Malo then produced a hammer from inside his jacket and struck Mr Taylor on the head with it a number of times. Mr Vaafusuaga then began punching Mr Taylor as well. When Mr Taylor fell to the ground, Mr Ramos-Malo stomped on his head. This occurred multiple times. Mr Taylor was left lying unconscious for about 30 seconds in a pool of blood. He sustained a non-displaced fracture to the right side of his skull near his temple, fractures to his nose, a displaced nasal septum, two right sinus wall fractures, fractures to his eye socket, facial lacerations and wounds to his ears as the result of having his earrings pulled out. He was taken to hospital and discharged that afternoon.

8. Shayne Turner was the manager on duty at the hotel. He was called to attend shortly before these events occurred. He remonstrated with the assailants. Mr Ramos-Malo then approached Mr Turner and hit him in the face with a wooden chair leg. Mr Turner fell to the ground, unconscious, and began to bleed from his mouth and nose. Mr Taylor sustained a comminuted depressed fracture of the anterior wall of his right maxillary antrum and associated severe bruising. He was taken to hospital.

9. Mr Ramos-Malo then re-entered the gaming area and struck Mr Hayward on the head with the chair leg.

10. About seven weeks later, Brendon Paton left the Penrith RSL Club at around 1.00am and started walking to the Panthers Leagues Club to meet his father. He came across Tyrone Glover who he later learned had just been ejected from Panthers. Mr Glover asked him for a cigarette. Mr Ramos-Malo then walked up to Mr Paton. Mr Glover then suddenly said to him, “Give us some fucking money for a taxi!”. Mr Glover and Mr Ramos-Malo then became aggressive, repeatedly threatening to harm Mr Paton. Mr Paton gave Mr Ramos-Malo his mobile phone which was locked. The phone was then smashed.

11. Mr Ramos-Malo then suddenly produced a knife. He held it to the side of Mr Paton’s stomach in a stabbing motion. Mr Glover told Mr Paton to empty his pockets and take off his clothes. He was punched several times by Mr Glover as he did so. Mr Ramos-Malo then held Mr Paton against a brick wall with the knife pointed at him, as Mr Glover went through his clothing. The offenders took Mr Paton’s bank cards, Medicare card, mobile phone, Bluetooth speaker, jacket and gold ring. He was further threatened and told to cross the road and jump a fence.

12. Mr Paton was severely traumatised by this incident. He sustained minor bruising under his eyes. He sustained a haemorrhage below his left eye.

Findings on sentence

13. His Honour found that the offence of wounding Mr Taylor with intent to cause grievous bodily harm fell marginally above the mid-range. His Honour considered that the violence used, involving the use of a hammer, was extreme and the injuries inflicted were very serious. Mr Ramos-Malo’s culpability in what his Honour referred to as “this misconduct” was said to be at the “highest level”.

14. His Honour found that the offence of assault of Mr Hayward occasioning actual bodily harm in company was just below the mid-range. Mr Ramos-Malo had no significant role in the initial assault but later returned and struck Mr Hayward with the chair leg. The offence was aggravated by the use of that weapon. Although there was some provocation, his Honour found that the attack could not be justified. The like offence committed against Mr Turner was found to fall near the mid-range. Mr Turner did not provoke the attack and was an innocent bystander performing his duties at the hotel.

15. His Honour found that the September offence, involving both the application of force and the humiliation of Mr Paton, fell towards the mid-range. Mr Paton was vulnerable when confronted, although not in the sense contemplated in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

16. His Honour noted that Mr Ramos-Malo had a record that included two offences of driving whilst suspended, driving with a mid-range prescribed concentration of alcohol and being in possession of a spray can. He received probation in 2016 for a robbery in company committed as a juvenile the previous year. His Honour found that these offences had a limited role to play but that Mr Ramos-Malo had a propensity for anti-social behaviour.

17. Mr Ramos-Malo wrote a letter to the Court expressing regret for his offending and disgust for his conduct. His Honour concluded that this self-representation as a kind, fair, humble and caring young man stood in stark contrast to his behaviour he exhibited in the July offences.

18. Mr Ramos-Malo’s childhood lacked stability. His parents separated when he was a toddler and his mother’s new partner abused him psychologically and physically. Mr Ramos-Malo had some ability as a musician. He was working as an apprentice roof tiler when he was arrested.

19. His Honour referred to Mr Ramos-Malo’s history of generalised anxiety and depression, which included an attempted suicide followed by involuntary admission and counselling. He has a history of substance abuse, acknowledged to be a factor contributing to his offending. Mr Ramos-Malo has used cannabis and alcohol since he was 15. He later started using ice when he was 19, as well as cocaine and MDMA.

20. References were provided to his Honour, and were referred to in his Remarks on Sentence. Mr Ramos-Malo was on conditional liberty in September as the consequence of a s 9 bond and by reason of a grant of bail for the July offences.

21. His Honour was satisfied that Mr Ramos-Malo had demonstrated unqualified and genuine contrition and remorse and that there were strong prospects for his rehabilitation. His Honour also took account of his youth and recognised his expression of insight into his offending. He was given an uncontroversial discount of 25% for his early pleas of guilty. With respect to the September offence, his Honour noted that general and specific deterrence were relevant and that it was necessary to recognise the harm caused and to denounce what his Honour called “deplorable behaviour”. His Honour found special circumstances on the basis of Mr Ramos-Malo’s youth, the progress he had made in custody, the desirability of providing for a longer period of supervision in the community to consolidate the improvements he had already made and the limited significance of his criminal record. His prospects of rehabilitation and expressions of remorse were also relevant in this respect.

Grounds 1 and 2

22. In my opinion, these grounds are misconceived. Mr Ramos-Malo’s appeal is against his aggregate sentence and does not lie with respect to any indicative sentence referred to by his Honour. So much has been consistently recognised, as for example by Schmidt J in DS v R [2017] NSWCCA 37 at [64] as follows:

“[64] Indicative sentences are not themselves amenable to appeal, but they may reveal error in the aggregate sentence imposed. Even if indicative sentences are accepted as being excessive, that will not necessarily result in the conclusion that the aggregate sentence is excessive: see JM v R [2014] NSWCCA 297 at [40].”

23. Her Honour’s reference to JM v R bears repeating:

“[40] The following further propositions emerge from the cases in relation to appellate review of aggregate sentencing exercises:

10. Another benefit of the aggregate sentencing provision is that it makes it easier on appeal to impose a new aggregate sentence if one of the underlying convictions needs to be quashed…

11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence…

12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive…

13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved… This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures…

14. Erroneous specification by a sentencing judge of commencement dates for indicative sentences (such as there being gaps between the expiry of some indicative sentences and the commencement of subsequent sentences) are immaterial and may be ignored as being otiose…

15. A failure of a judge to specify a non-parole period in the indicative sentence for a standard non-parole period offence will not lead to an appeal being upheld. Failure to do so does not invalidate the sentence: s 54B(7). Setting non-parole periods for the indicative sentences for standard non-parole period offences would have no effect upon the aggregate sentence imposed…”

24. To the extent that Mr Ramos-Malo wishes to refer to his Honour’s choice of an indicative sentence, he can properly do so only in the context of a consideration of the remaining grounds of appeal. The matters to which he refers in support of this ground of appeal can therefore be treated for the purposes of grounds 3 and 4 as a complaint that in sentencing Mr Ramos-Malo, his Honour failed to pay any or any sufficient regard to the guideline judgment in Henry at [161]-[165]. However, in describing the perceived complaint in those terms, it should be understood that Henry is no more than a guideline and is not to be treated as some kind of grid or framework from which a sentencing judge cannot depart without error.

Ground 3

25. Jimmy Vaafusuaga pleaded guilty and was sentenced to imprisonment for 4 years with a non-parole period of 2 years for wounding with intent to cause grievous bodily harm. That sentence takes into account an offence of assault occasioning actual bodily harm in company on a Form 1. He was sentenced by his Honour on 4 December 2019, at the same time as Mr Ramos-Malo.

26. The starting point for a comparison between the sentences imposed upon Mr Ramos-Malo and Mr Vaafusuaga must be a consideration of what each of them did. Although this is described earlier, it is important to observe that Mr Ramos-Malo struck Mr Taylor with a hammer “a number of times” and then proceeded to stomp on his head “while he lay on the ground”. Mr Vaafusuaga’s involvement was limited to punching Mr Taylor in the back of the head as he fought off Mr Ramos-Malo’s hammer attack and thereafter to punching him “multiple times in the head while he lay on the ground”. Mr Taylor was “left lying in a pool of blood, unconscious on the ground for at least 30 seconds”.

27. His Honour outlined Mr Vaafusuaga’s subjective case in some detail as follows:

“He is of the Samoan culture. He came to this country in 2010 with his family. He is not an Australian citizen.

His father is gainfully employed as a bus driver, without any history of substance abuse, psychiatric problems or criminality; although his father did have an alcohol problem until the offender was aged 12. His mother is gainfully employed. She has no adverse history. She also had a serious alcohol problem, though, which seems to have resolved. His parents are still together and they are supportive. There are seven children in the family and he is the fourth in order. All are living in this country except for one, who is in custody for some reason.

He claimed a difficult childhood, attributed to his parents’ alcohol abuse which continued until he was aged 12 and was accompanied by verbal and physical abuse, but thereafter their relationship improved. It is now described as good. He is close to his siblings. He has never been married.

His education was in New Zealand. He had some trouble in school. He continued his education in Bidwell in this country, but left before year 11. He began working in a warehouse, but left after ten months because of the poor pay. He then went to another company, doing warehouse work, but left after 12 months due to poor pay. He then entered work with another warehouse, but was taken into custody for this offence and lost that position. He was released and gained work in construction, but then was placed in Villawood Detention for a period of two months, after which he secured employment with a window company, which he held for two weeks.

He experimented with drugs at the age of 16, namely, cannabis. He then began to experiment with cocaine. He began drinking alcohol at age 17, which became a problem for him, it would appear; when inebriated, his personality is more outgoing than the shy person that he is when sober. He scored highly in a test which indicated that he was at risk for forming harmful drinking patterns. He has now stopped consuming alcohol, according to the report.

…

His parents are active and well respected members of the church. His father served as church secretary for a few years. He is surprised to hear of the offending by the offender, who is said to be a good person who deserves a chance.

Rick Kalkhoven is the logistics manager for the windows company. He speaks of the offender’s work period with that organisation. He is a friend of the offender over five years. He speaks in positive terms. He is not a threat to the community, he writes. He is a good person with a good heart, just going through a typical teenage phase when he was caught with the wrong group and engaged upon misconduct with which he is charged.

Another supervisor from the same company wrote of her perception of the offender. This is Louise Moro. She sees him as professional, dependable and responsible.

Solomona Sapoaga writes of the offender. This author is the older brother of the offender. He is said to have been responsible, well-mannered and of good character throughout his life. The impact of this conduct upon the family is profound, according to what Mr Sapoaga has written here. I can understand that. There could be no greater tragedy for a family close to one of the children, apart from the loss of that child to death, when confronted with the prospect of the child, although a young adult now, being sent to gaol for serious criminal misconduct such as this. As in all such cases, the family has the Court’s sympathy, and it is sympathy which I extend to the other family members of these young men for the predicament they have caused themselves.

…

This brings to my attention that he spent one month in the custody of Immigration at Villawood; his visa was cancelled by the Department of Home Affairs.

There is an agreed statement of facts regarding that, telling me that on 22 March 2018 he was granted a special category TY-444 visa. On 2 August 2018 he was charged. He pleaded guilty on 12 April 2019. On 14 May 2019, the Department of Home Affairs cancelled his visa on the ground he failed the good character test. On 20 May 2019 he was taken into Immigration custody. On 28 June 2019 he successfully applied to the Administrative Appeals Tribunal for a review application. He is now on a bridging visa, pending the outcome of this matter. On 28 June 2019 he was released from Immigration detention.

Whatever is to happen with him at the instance of the Commonwealth is not a matter that is relevant to the determination of sentence in this case. However, I will bring to account that he has spent a period in custody, albeit with the Commonwealth authorities, as a direct consequence of his misconduct and his loss of status to be at large in the community.

…

I am reminded that the offender gave evidence before me; the one offender in this instance who did so. He described his living arrangements with his family at Rooty Hill. He acknowledged his involvement in this fight. He engaged in efforts to stop Sua from his misconduct and attempted to hold him back. He saw Ramos-Malo in the fight with Mr Taylor; he saw that Ramos-Malo had the hammer. He did not see Ramos-Malo with the hammer before the fight erupted; he went to help in the continuation of the melee, engaging in punching, including when Mr Taylor was on the ground. That was the description given to his conduct in the material tendered by the Crown.

…

The offence upon Troy Taylor is described. Mr Taylor was struck by the hammer and fell to the ground, after he was punched to the back of the head by this offender; this offender then continued to punch him multiple times while he lay on the ground, as Ramos-Malo stomped on Mr Taylor’s head. He picked up the hammer that had been dropped after the attack and took it with him as he left.

It is upon that description that he concedes that he went to help Ramos-Malo in the course of the fight, including the punching there described and including when Mr Taylor was on the ground and incapable of defending himself.

He expressed his remorse; he has done so with his family. He says he has changed his life. He was injured and required treatment at the Nepean Hospital, to which I earlier referred; and that was as a consequence of the backswing when the hammer was being wielded by Ramos-Malo. He cooperated with the police. He went in to be interviewed, admitted his involvement, and told them that he was regretful. He gave the psychologist all of the details that she included in the report, and he adopted those.

He acknowledged his excessive drinking on the night and his intoxication; this was the consumption of beer and bourbon. He was cross-examined upon the presence of the hammer, and he acknowledged the continuum in his participation after he was aware that Ramos-Malo had that weapon. He denied that he was exaggerating his state of intoxication. He does not drink anymore.”

28. His Honour described Mr Vaafusuaga’s role in the wounding offence in these terms:

“The conduct of the offender cannot be confined to the blows he struck; it must be assessed within the context of the joint criminal enterprise upon which he engaged, which included the blows struck by his co-offender which led to the grievous injuries suffered by the victim. The fact that he was aware of the use of the hammer in this attack and his decision thereupon to also batter the victim by punching in the back of the head and then punching him when he was down on the ground raises the objective gravity of this offence. Although, in this case, I agree that the objective seriousness does fall below that applied, rather, in the case of the co-offender Ramos-Malo for the reasons advanced by the Crown in the written submissions.

The offender also has the benefit of a clear record, but there must be general deterrence; there must be punishment; there must be recognition of harm, and denunciation for this behaviour. I accept that his prospects for rehabilitation are strong. I accept his contrition and remorse. I accept that specific or personal deterrence has a more limited role to play in his case, but I also agree that in his case there should be a sentence of imprisonment.”

29. The Crown helpfully summarised the relative similarities and differences between Mr Ramos-Malo and Mr Vaafusuaga in the following table:

Mr Ramos-Malo	Mr Vaafusuaga
Offence	1. Assault occasioning actual bodily harm in company (victim: Anthony Hayward) s 59(2) Crimes Act 1900 Max 7 yrs 2. Wound with intent to cause grievous bodily harm (victim: Troy Taylor) s 33(1)(a) Crimes Act 1900 Max 25 yrs/SNPP 7 yrs 3. Assault occasioning actual bodily harm in company (victim: Shayne Turner) S 59(2) Crimes Act 1900 Max 7 yrs.	Wound with intent to cause grievous bodily harm (victim: Troy Taylor) s 33(1)(a) Crimes Act 1900 Max 25 yrs/SNPP 7 yrs Form 1: Assault occasioning actual bodily harm (victim: Anthony Hayward) S 59(2) Crimes Act 1900 Max 7 yrs.
Sentence	Indicative sentence for Count 2: 8 years (NPP 5 years).	4 years (NPP 2 years).
Discount for plea	25%.	25%.
Criminal History	Antecedent record of limited significance.	Nil.
Conditional liberty	Yes – on a s 9 bond.	No.
Objective seriousness	Marginally above mid-range.	Conduct assessed within context of the joint criminal enterprise including blows struck by Mr Ramos-Malo. However, objective seriousness fell below that applied in the case of Mr Ramos-Malo.
Role in offending	The violence used against Mr Taylor was extreme, involving use of the hammer, struck multiple times. Mr Ramos-Malo was the highest level of culpability in this misconduct.	After Mr Taylor was struck by the hammer and fell to the ground, Mr Vaafusuaga punched him in the back of the head and continued to punch him multiple times while he lay on the ground. Mr Vaafusuaga did not see Mr Ramos-Malo with the hammer before the fight, but conceded he went to help Mr Ramos-Malo in the fight. Mr Vaafusuaga was injured himself as a consequence of Mr Ramos-Malo’s use of the hammer
Subjective factors	Dysfunctional and unstable childhood. Adolescent onset of generalised anxiety and depression attributed to environmental factors and complicated by significant substance abuse. Suicide attempt followed by involuntary mental health admission. History of alcohol and drug abuse. Mr Ramos-Malo’s letter expressed regret and disgust with himself. Ample material making it clear he had taken another path. He had expressed insight. Youth taken into account. Limited support in his formative years and awareness of the harm caused.	22 year old at sentence. Of Samoan culture. Difficult childhood due to parent’s alcohol abuse accompanied by verbal and physical abuse. Experimented with cannabis and cocaine at age of 16 and began drinking alcohol at 17 which became a problem. Psychologist found offences were a reflection of his alcohol consumption. Cooperated with police. He was interviewed, admitted his involvement and told them he was regretful. Had now stopped drinking alcohol.
Prospects of rehabilitation/ risk of re-offending	Promising rehabilitation.	Prospects were strong.
Remorse/ Contrition	Mr Ramos-Malo’s letter expressed disgust and shame, with representations that he was a kind, fair, humble and caring young man standing in stark contrast to the behaviour upon which he engaged on this occasion.	Expressed remorse, both in evidence on sentence and to family. His Honour accepted he was appropriately contrite.
Special circumstances	Yes.	Yes.
Deterrence	No finding made in second judgment.	There must be general deterrence, recognition of harm and denunciation of this behaviour. Specific or personal deterrence had a more limited role to play in Mr Vaafusuaga’s case.

30. Mr Ramos-Malo submitted that, despite the similarities in their circumstances on the one hand, and accepting his Honour’s assessment of the differences in their objective criminality on the other hand, the disparity between the sentence imposed on Mr Vaafusuaga for the wounding offence and the sentence indicated by his Honour for the same offence committed by him could not be justified. His Honour found that Mr Ramos-Malo’s offending was marginally above the mid-range whereas Mr Vaafusuaga’s offending was well below that. Mr Ramos-Malo suggested that the starting points chosen by his Honour were therefore “radically”, and presumably unjustifiably, different.

31. It is apparent from his Honour’s clear and comprehensive reasons that he formed the view that Mr Ramos-Malo’s conduct was objectively very serious. Having regard to the possible range of behaviour contemplated by s 33, that view is not out of step with his Honour’s characterisation of the offending as marginally above the mid-range. However, Mr Ramos-Malo maintains in effect that the sentence his Honour has indicated he would have imposed for the wounding offence committed by him is disproportionately severe when compared to Mr Vaafusuaga’s actions in the wounding of Mr Taylor. Although Mr Ramos-Malo does not, and cannot, appeal from that indicative sentence, he maintains that it provides an insight into his Honour’s approach to the aggregate sentence and demonstrates his Honour’s failure to afford like punishment for like offences.

32. In response to Mr Ramos-Malo’s contention, the Crown maintains that the different levels of participation in their common offending explained the disparate sentences. On the one hand, the violence used against Mr Taylor by Mr Ramos-Malo was extreme: the use of a hammer to inflict blows to his head is a sufficient indicator of this. The fact that Mr Ramos-Malo then proceeded to stomp on Mr Taylor’s head was said to be a violent continuation of this extreme conduct. But for the intervention of a co-offender, Mr Taylor appeared likely to have received further blows with the hammer.

33. The Crown also submitted that there were significant differences in the offenders’ respective subjective cases. As indicated in the table, Mr Vaafusuaga had the benefit of a clean criminal record, whereas Mr Ramos-Malo had a limited history of offending, as well as being on a bond. His Honour found that both men had the benefit of favourable findings on rehabilitation and contrition, but in the case of Mr Vaafusuaga, specific deterrence had a more limited role to play. Mr Vaafusuaga’s sentence was also reduced on account of his compliance with stringent bail conditions and time spent in immigration detention. The Crown submitted that Mr Ramos-Malo had not in these circumstances demonstrated the existence of a justifiable sense of grievance.

34. However, on balance, and accepting that the hammer and the stomping by Ramos-Malo was serious offending and worse than that of Mr Vaafusuaga, we consider that his Honour erred in assessing Mr Vaafusuaga’s moral culpability as well below Ramos-Malo.

35. Mr Vaafusuaga’s offending was still serious. He punched Mr Taylor in the head from behind as he attempted to defend himself from the hammer blows. It was at that point that Mr Taylor fell to the ground, and Mr Vaafusuaga punched him multiple times, including when he was defenceless on the ground. On one view, the sentence imposed upon Mr Vaafusuaga was lenient, probably assisted by the Crown’s submissions and his strong subjective case.

36. We are of the view that in all of the circumstances, the discrepancy in the overall sentences is not fairly explained and Mr Ramos-Malo has established that he has a justifiable sense of grievance concerning the sentence imposed on Mr Vaafusuaga.

Grounds 4 and 5

37. Having regard to the view we have formed with respect to Ground 3, it is unnecessary to deal with these grounds.

Resentence

38. Error having been found, it is necessary to exercise the discretion to re-sentence.

39. Mr Ramos-Malo swore an affidavit dated 25 February 2021 which was read without objection on the “usual basis”: (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4]). It is relevant to his resentencing and is in the following terms:

"1. I am the applicant in the appeal listed for 1 March 2021.

2. I am 22 years of age.

3. I am currently serving a sentence of 10 years with a non-parole period of 6 years. I am eligible for parole on 7 September 2028.

4. It has been very difficult to comprehend the situation that I am in. It has been a crushing experience that I am trying my best to overcome through work in custody as well the completion programs to set a foundation for when I am released.

5. I feel like the best years of my life have been stripped away. I will be unable to share this time with family, friends and loved ones, not knowing if my promising music career will be around still as well as my family members like my grandmother.

6. After sentencing, I behaved well enough to proceed to a minimum classification goal. I have been working on buildings as well as crane operations. I have been working for the last 12 months.

7. Regardless of not knowing if my appeal would be accepted, I still wanted to better myself and future by participating in self-volunteer programs.

8. These programs include the EQUIPS Aggressions Program as well as;

a. A SafeWork NSW High Risk Work Licence.

b. Statement of Attainment from TAFE NSW to Work Safely at Heights completed on 26 August 2020.

c. Licence to operate a slewing mobile crane completed on 16 November 2020.

d. Licence to perform dogging with NSW TAFE.

e. Completed National WHS General Construction Induct Training on 12 October 2020.

f. Statement of attainment certificate to Prepare to work safely in the construction industry completed also on 12 October 2020.

g. Certificate of completion of Health and Survival Tips dealing with alcohol and drugs, completed on 9 October 2020.

9. Since being sentenced I have had only two visits. Due to Covid-19 all visits were suspended. It has been extremely difficult not seeing my family who are my main support base. These suspensions have been in place for about the last thirteen months. Six out of the thirteen months did not even include video link visits.

10. Due to not having my family support visits it has felt like a sentence within a sentence. It has made my time in custody much harder to cope with.”

40. This material is consistent with and supports his Honour’s finding that Mr Ramos-Malo has strong prospects of rehabilitation, especially in combination with his demonstration of unqualified contrition and remorse. In all other respects, we adopt his Honour’s findings summarised above, including the finding of special circumstances. Mr Ramos-Malo is to be sentenced on the basis of the agreed facts.

41. We also agree that an aggregate sentence should be imposed. In our view, the appropriate aggregate sentence is 8 years imprisonment commencing on 8 September 2018 with a non-parole period of 4 years and 9 months expiring on 7 June 2023. As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, we would specify an indicative sentence for the offence of wound Troy Taylor with intent to cause grievous bodily harm of 6 years with a non-parole period of 4 years. We would adopt the indicative sentences for the balance of the counts as indicated by his Honour.

**********

Decision last updated: 31 March 2021