Sunia James Kafovalu v Regina
[2007] NSWCCA 141
•24 May 2007
New South Wales
Court of Criminal Appeal
CITATION: Sunia James Kafovalu v Regina [2007] NSWCCA 141 HEARING DATE(S): 26 April 2007
JUDGMENT DATE:
24 May 2007JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 3 DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence, robbery in company, affray, assault occasioning actual bodily harm, assaulting police officer in execution of duty thereby occasioning actual bodily harm, resiting police officers in execution of duty, objective seriousness of assault occasioning actual bodily harm, whether error to take into account fact that offender on parole at time of offence, no error shown, no miscarriage of sentencing discretion, sentences not manifestly excessive LEGISLATION CITED: Crimes Act 1900 - ss 58, 59(1), 60(2), 93C(1), 97(1)
Criminal Appeal Act 1912 - s6(3)CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Henry (1999) 46 NSWLR 346
R v Keen [2004] NSWCCA 86
R v McNaughton [2006] NSWCCA 242
R v Moffitt (1990) 20 NSWLR 114
R v Price [2004] NSWCCA 186
R v Readman (1990) 47 A Crim R 181
R v Richards [1981] 2 NSWLR 464
R v Simpson (2001) 53 NSWLR 704
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Tran [1999] NSWCCA 109
R v Way (2004) 60 NSWLR 168
R v Wilson [2005] NSWCCA 219
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196
Veen v The Queen (No 2) (1988) 164 CLR 465PARTIES: Sunia James Kafovalu (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2006/2652 COUNSEL: C Smith (Applicant)
D Woodburne (Crown)SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0076 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 2 June 2006 (Date of sentence)
2006/2652
24 May 2007JAMES J
ROTHMAN J
HARRISON J
1 JAMES J: I agree with Harrison J.
2 ROTHMAN J: I agree with Harrison J.
3 HARRISON J: On 22 June 2005 the applicant entered a plea of guilty in the District Court of New South Wales to a charge of robbery in company on 26 September 2003 at Newtown. This is an offence under s 97(1) of the Crimes Act 1900. The offence of robbery in company carries a maximum penalty of 20 years imprisonment.
4 On 25 November 2005 the applicant entered pleas of guilty in the District Court of New South Wales to charges of affray, assault occasioning actual bodily harm, assaulting a police officer in the execution of her duty and thereby occasioning actual bodily harm, and resisting police officers in the execution of their duty. The maximum penalties in the Crimes Act 1900 for these offences are, respectively, imprisonment for 5 years under s 93C(1), 5 years under s 59(1), 7 years under s 60(2), and 5 years under s 58 for each offence. The offence of assaulting and occasioning actual bodily harm to a police officer attracts a standard non-parole period of 3 years.
5 At the sentencing hearing before Hulme DCJ on 19 May 2006, on the charge of robbery in company, the applicant asked that his guilt in respect of a further similar charge committed on the same occasion upon the same victim be taken into account.
Facts
6 In respect of the robbery in company offences, the facts were agreed.
7 On the night of Friday 26 February 2003, Andrew O'Kane went to a work function. In the early hours of the morning he caught a cab to Newtown. When he alighted from the cab about 3.45am, he was approached by the applicant and an unidentified male. He was grabbed by the arms by both men and punched in the face. One of them asked him for all of his money and he produced his wallet and handed them $50. That was the robbery itemised on the Form 1. The following is what constitutes the offence on the indictment.
8 One of the offenders said, "That's not enough, we're going to the bank.” Mr O'Kane was down on his knee at this time and was grabbed by the hair and pulled up from the ground. He was then walked along King Street, Newtown to an automatic teller machine and commanded to insert his card. He did so. Notwithstanding his co-operation, the applicant punched Mr O'Kane with a closed fist to the side of the face, chipping his tooth and cutting his lip.
9 The applicant then tried to make withdrawals from the machine in the amounts of $900 and $5000. This was unsuccessful and the applicant proceeded to punch Mr O'Kane several times with a closed fist around the right eye. The applicant then made an enquiry on the machine as to the balance of Mr O'Kane's account and said, "I'm going to kill you if you have a lot of money in your account". After the printout appeared from the machine the applicant asked Mr O'Kane what was the limit he could withdraw and Mr O'Kane replied that he thought it was $400. He was then commanded to withdraw that amount, and he did so.
10 The applicant then said, "Okay, we're going to do this again". When Mr O'Kane hesitated he was punched in the face again.
11 At about this time the applicant's co-offender suggested that they should leave. The applicant moved away from Mr O'Kane who spun around and crossed the footpath onto the roadway, narrowly missing a passing car. The applicant and his co-offender then fled. Mr O'Kane returned to his home and contacted the police. He was subsequently examined by a doctor who observed bruising and abrasions to his face.
12 In respect of the charges of affray and assault, the facts were also agreed.
13 About 3.10am on Wednesday 18 February 2004 the applicant and a number of Islander males became involved in a fight with an unknown male on the north-eastern corner of George and Goulburn Streets, Sydney. A security officer from a hotel on the south-eastern corner of the intersection intervened and broke up the fight. The applicant and his companions then crossed to the south-eastern corner of the intersection and purchased some food. They then crossed to the north-western corner and began to assault a group of male and female Irish tourists. During the course of this melee, one of the tourists, Philip Fleming, was knocked to the ground. One man stomped on his head whilst the applicant kicked him in the head. The applicant's companions continued assaulting the other tourists. Two road workers came to assist Mr Fleming and as they approached, the applicant and his companions ran off.
14 Mr Fleming was taken to hospital and found to have suffered a closed head injury, contusions to the face and right side of his head. He was discharged later that day but was readmitted on 1 March 2004 suffering continuing headaches and dizziness. A diagnosis of concussion following head injury was made. He was discharged the next day.
15 After the assault upon Mr Fleming, the applicant and his companions chased another of the tourists, Mr Ian Doyle, and caught him on the footpath outside a convenience store on the western side of George Street. The applicant and his companions were pulling their T-shirts up over their faces, presumably to avoid detection from security cameras. When they caught Mr Doyle they began to assault him. The applicant then moved away from Mr Doyle and approached another man who ran away. He then returned to where Mr Doyle was still being assaulted by the others. The applicant and the other men then walked away. This incident is said to constitute the offence of affray.
16 Two female police officers arrived at the scene. At this stage the applicant was walking in George Street with two females. He again pulled his T-shirt over his face. The police officers chased him north along George Street. He ran across George Street into Liverpool Street to the area outside Central Local Court. At this point he turned and took hold of Constable Dumas by her face with one hand and struck her with a heavy blow to the left of her head with his other fist. Constable Dumas fell backwards. Constable Gao then struck the applicant with her baton. This incident is said to constitute the offence of assault on Constable Dumas.
17 The applicant then proceeded to run but soon turned and pushed Constable Dumas to the ground. He fell over and as he attempted to get up and run again, Constable Dumas tripped him. He fell down again and Constable Gao took hold of him. This incident is said to constitute the offence of resisting Constable Dumas.
18 Constable Gao then turned the applicant face down and placed her knee on his shoulder to restrain him. The applicant struggled against her. She held him whilst Constable Dumas handcuffed him. Other officers attended and took the applicant to the City Central Police Station. He was not interviewed because he was too intoxicated.
19 A doctor at Sydney Hospital examined Constable Dumas on 18 February 2004. The doctor noted swelling and tenderness behind her left ear and left sided neck pain with reduced range of movement. On 16 March 2004 her neck pain flared up. An x-ray was taken and muscle spasm with minimal disc space narrowing at C4/5 was reported. She suffered several more flare-ups of neck pain between that date and 1 June 2004. She was treated with anti-inflammatory medication on these occasions.
The sentence
20 The applicant was convicted and sentenced as follows: -
20.1 In respect of the offences of resisting a police officer, the applicant was sentenced to a fixed term of imprisonment of 3 months commencing on 18 August 2004 and expiring on 17 November 2004.
20.2 In respect of the offence of affray the applicant was sentenced to a term of imprisonment of 1 year and 4 months commencing on 18 August 2004 and expiring on 17 December 2005 with the non-parole period of 12 months expiring on 17 August 2005.
20.3 In respect of the offence of assault occasioning actual bodily harm upon Mr Fleming, the applicant was sentenced to a term of imprisonment of 1 year and 4 months commencing on 18 February 2005 and expiring on 17 June 2006 with a non-parole period of 12 months expiring on 17 February 2006.
20.4 In respect of the offence of assault occasioning actual bodily harm upon Constable Dumas, the applicant was sentenced to a term of imprisonment of 3 years commencing on 18 August 2005 and expiring on 17 August 2008 with a non-parole period of 2 years and 9 months expiring on 17 November 2007.
20.5 In respect of the offence of robbery in company, the applicant was sentenced to a term of imprisonment of 4 years commencing on 18 August 2006 and expiring on 17 August 2010 with a non-parole period of 2 years expiring on 17 August 2008.
21 In the result, the effective total sentence was a sentence of 6 years commencing on 18 August 2004 and expiring on 17 August 2010. The total effective non-parole period was 4 years commencing on 18 August 2004 and expiring on 17 August 2008.
22 The applicant seeks leave to appeal to this Court and appeals on three grounds.
Ground 1 : The sentencing judge erred in assessing the objective seriousness of the offence of assault occasioning actual bodily harm to a police officer Constable Dumas by taking into account the fact that the applicant was on parole at the time of the offence.
Ground 3 : The [overall] sentence is manifestly excessive.Ground 2 : The sentence imposed in respect of the offence of assault occasioning actual bodily harm to a police officer Constable Dumas is manifestly excessive.
23 In support of the first ground of appeal the applicant draws attention to his Honour’s Remarks on Sentence, and in particular to the following paragraphs: -
In making these assessments I have taken into account the serious aggravating feature that the offender was on parole at the time of the offences . The only mitigating feature relating to objective gravity of these offences is that they were probably spontaneous rather than being planned criminal activity". ( Emphasis appearing in applicant’s written submissions)."As for the affray, assault and resist offences, it is difficult to describe with precision the level of criminality they represent. The affray I would assess as approaching the middle of the range of objective seriousness as it represented a display of wanton gratuitous undiscriminating violence. The assault upon Mr Fleming, involving as it did the infliction of a closed head injury, is also towards the middle of the range, whilst the assault upon Constable Dumas I would assess as being in the middle of the range. The resist offences are fairly typical examples of their type, not of an overly serious kind.
24 In R v Way (2004) 60 NSWLR 168 Spigelman CJ, in referring to the assessment of the objective seriousness of offences carrying a standard non-parole period, emphasised the need to confine factors to matters that are directly or causally related to the commission of the offence. This involves the inquiry that would take into account "the actus reus, the consequences of the conduct, and those factors that might properly" affect the "mens rea of the offender": at [85]. In particular, the Chief Justice, in discussing the treatment of antecedent criminal history and re-offending whilst on conditional liberty before the introduction of standard non-parole periods said at [98] -[99]:
The position has now changed in relation to sentencing in respect of offences for which standard non-parole periods have been set, in so far as there needs to be an examination of the level of objective seriousness involved in the offence, in which considerations that do not have a nexus with its commission are to be placed to one side.""Prior to enactment of legislation of the kind which is seen in Div 1A of Pt 4 it was probably not necessary for any strict line to be drawn between matters which related to the offence, and to the offender, respectively, since the focus was placed upon the question of setting a sentence that reflected the overall criminal culpability involved.
25 In R v McNaughton [2006] NSWCCA 242 Spigelman CJ determined that the principle of proportionality required that the upper boundary of a proportionate sentence should be set by the objective circumstances of the offence which did not encompass prior convictions: at [24]. The Chief Justice went on to say at [32]:
"Section 21A(1)(c) refers expressly to "any other objective or subjective factor", clearly indicating that the lists of aggravating and mitigating factors in section 21A(2) and (3) encompass both kinds of considerations. Some of the matters listed in section 21A(2) appear to me to encompass matters which, in the terminology that has come to be adopted in the case law are, at least in part, "subjective" rather than "objective", e.g. motive in (h) and offending whilst on conditional liberty in (j). I can see no reason why the reference to prior convictions should not be interpreted as referring to the use of that consideration in the ways authorised expressly in Veen No. 2. "
26 The Crown concedes that the sentencing judge fell into error in the way contended by the applicant, but submits that it does not follow that the sentence imposed for the offence of assault police officer occasioning actual bodily harm should be quashed or that a lesser sentence should be imposed. The Crown draws attention to the well-known words of s 6(3) of the Criminal Appeal Act 1912 that "some other sentence . . . is warranted in law and should have been passed" and to the decision of this Court in R v Simpson (2001) 53 NSWLR 704 at [79] and [99]-[100].
27 In my opinion his Honour fell into error in the way contended for by the applicant. The effect, if any, which this has had upon the appropriateness of the sentences imposed by his Honour, will be considered following an analysis of the applicant’s other grounds of appeal.
28 In support of the second ground the applicant submits that the sentence for this offence was manifestly excessive because: -
- 28.1 it was an offence that fell below the middle range of offences and not in the middle of the range;
- 28.2 in determining where the offence fell in terms of objective seriousness the sentencing judge erred in taking into account conditional liberty (to this extent the applicant repeats the submissions made in support of ground one).
29 The applicant submitted further that although the offence was serious, it was not an offence that fell within the middle range of such offences because: -
29.1 the substance of the assault was constituted by one "heavy blow to the left side" of the victim's head;
29.3 the assault occurred spontaneously rather than as a planned criminal activity.29.2 this was not an offence characterised by a number of blows to the face or head or one that involved kicking or more serious violence;
30 The applicant conceded that the fact that the victim of this assault was a female police officer who suffered injury was relevant to the assessment of the objective seriousness of the offence. However, the applicant contended that a comparison of that fact with the matters referred to in the preceding paragraph meant that this particular offence fell below the mid range of objective seriousness.
31 The Crown contends that in order for a sentencing judge's assessment to be challenged it is necessary for an applicant to demonstrate not merely that there may be a range of different opinions as to where an offence falls on the scale of seriousness, but that it was not open to that judge to regard the offence as falling within a particular range. The Crown concedes that the nature and number of blows is a relevant consideration but does not concede the fact, because the assault involved only one blow, that it was not open to his Honour to regard the matter as falling within the middle of the range of objective seriousness.
32 Moreover, the Crown emphasises the extent of the actual bodily harm that resulted. Although Constable Dumas would not appear to have been permanently disabled or disfigured, she did suffer from pain and discomfort requiring treatment with anti-inflammatory medication together with some radiologically demonstrated spinal pathology.
33 With respect to the question of spontaneity, the Crown emphasises that his Honour took into account the fact that the assault occurred in this way and was, in effect, neither planned nor premeditated. As his Honour said, "The only mitigating feature relating to objective gravity of these offences is that they were probably spontaneous rather than being planned criminal activity". It is difficult to see what better, or other, exposition of this proposition more favourable to the applicant could have been given by his Honour. The applicant's submission in this Court cannot advance his case in the circumstances, for the reason that his Honour would appear clearly to have taken it into account in a way favourable to the applicant.
34 If this were not the end of the matter, the Crown draws attention to the terms of the section describing the offence as one of a police officer "while in the execution of the officers duty". The Crown submits that the very way in which the offence is described encompasses a range of criminal activity that is unlikely in the majority of cases to be anything but spontaneous. Although the submission was not made in these terms, the Crown's submission suggests that the very words of the section contemplate spontaneous criminal activity of the type committed by the applicant. For the reasons given in the preceding paragraph, it is not necessary to consider this matter further.
35 The Crown also emphasises that in determining whether or not it was open to his Honour, in the exercise of his discretion, to impose the sentence that he did, it was not simply a question of determining where in the range of objective seriousness the offence stood. On the contrary, there were other matters relevant to the determination of the appropriate sentence that his Honour was entitled to consider. These included, in the applicant's favour, his plea of guilty, his youth and immaturity, and his need for rehabilitation.
36 On the other hand, so the Crown contends, his Honour was entitled to take into account the fact that the offence was committed while the applicant was on parole. It is settled law that the commission of an offence by an offender who is on conditional liberty is a matter of aggravation relevant to the determination of an appropriate sentence: see R v Readman (1990) 47 A Crim R 181; R v Richards (1981) 2 NSWLR 464 at 465 per Street CJ; R v Tran [1999] NSWCCA 109 at [15].
37 In R v Moffitt (1990) 20 NSWLR 114, Badgery-Parker J stated at 128:
". . . an offender who takes advantage of his liberty on parole to commit further crimes should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in thus abusing his parole".
38 Even though in the present case, apparently through some administrative error, the applicant was not required to serve the balance of his parole, the Crown submits that the sentence imposed was required properly to mark to some degree the seriousness of the applicant's conduct in abusing the conditional liberty that he had been granted.
39 In Re Attorney-General’s Application under s 37 of the Crimes (SentencingProcedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196 Spigelman CJ affirmed (at [22]), that offences involving assault upon police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. His Honour stated (at [26]), that the courts must support the authority of the police, in the performance of their duties. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.
40 It is convenient at this stage to deal with the third ground of appeal. This is because the applicant submitted in this Court that, with the exception of the offence of assault occasioning actual bodily harm to the police officer (the subject matter of the second round of appeal), no complaint was made with respect to the sentence imposed by his Honour for any of the other offences.
41 Therefore, in submitting that the overall sentence imposed by his Honour was manifestly excessive, the applicant’s only additional submission was that the extent of the accumulation led to a sentence that in its overall effect was manifestly excessive.
42 The applicant drew attention to Pearce v The Queen (1998) 194 CLR 610 which determined that a correct sentence should be fixed for each offence and then consideration be given to questions of totality, concurrence and accumulation: R v Keen [2004] NSWCCA 86 at [42]. The applicant accepted that the decision whether or not to accumulate was a matter within the discretion of the sentencing judge and that in that regard the sentencing judge had a degree of flexibility: Keen at [44].
43 It was the applicant's submission that, even allowing for a degree of flexibility, his Honour had erred in the exercise of his discretion because, in partially accumulating all of the sentences apart from the sentence for the resist police offences, he had, in effect, extended the effective sentence non-parole period to such an extent that he committed error. In particular, so it was submitted, in relation to all of the offences other than the robbery in company offence, there were clear features pointed toward the need for concurrence including first, that there was one continuing episode of criminality and secondly, that the acts were committed over a distinct and relatively short period of time. It was submitted that if the sentences for those offence were to be accumulated, it should have been in what was described as "a much less significant manner". Further, it was submitted that if the sentence imposed for the robbery in company offence were to be accumulated upon the sentences imposed on the other offences, the accumulation should have been less extensive than it was. In the result, it was submitted that this Court should intervene to reduce the aggregate non-parole period and the total effective sentence.
44 It was submitted on the behalf of the Crown that these submissions fail to recognise the appropriateness of partial accumulation in circumstances where the offences, although committed on the one occasion, are distinct and involve different victims. It was submitted by the Crown that it is not the law that because several offences arise from what is described as "one continuing episode of criminality" or that the "acts were committed over a distinct and relatively short period of time" they should be dealt with by way of concurrent sentences: see Simpson and Howie JJ in R v Price [2004] NSWCCA 186 at [46]-[52].
45 The Crown drew attention to the remarks of Simpson J in R v Wilson [2005] NSWCCA 219, a case where three victims were stabbed during an altercation. In considering the question of accumulation, her Honour remarked, at [37] and [38]:
[38] In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in section 3A of the Sentencing Procedure Act . The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims …" (Emphasis added)."[37] … It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality.
46 The Crown submits that in the present case there was in any event a significant degree of concurrency. The two offences of resist police, committed against different police officers, were not only wholly concurrent with each other but wholly subsumed by the sentence for the affray. The affray in turn was partially concurrent with the assault committed on Mr Fleming, and the sentence for the offence committed on Constable Dumas commenced only six months after the sentence imposed for the assault occasioning actual bodily harm on Mr Fleming.
47 The Crown contends that, subject to considerations of totality, it would have been open to his Honour to make the robbery in company offence wholly cumulative upon an appropriate sentence for the other offences for the reason that the offences were wholly unrelated, taking place on different occasions, and involving different victims. The Crown submits, therefore, that the applicant benefited from the order that the sentence for the robbery in company commence only 12 months after the sentence for the assault on Constable Dumas.
48 Having regard to the competing submissions on these grounds of appeal, it is important to have regard to the actual approach taken by his Honour when sentencing the applicant.
49 In his Remarks on Sentence, his Honour dealt in some detail with the relevant subjective features of the applicant's case. He had a criminal history comprising matters of armed robbery, possession or use of a prohibited weapon, goods in custody and assault at the age of 16; assault, affray, malicious destruction or damage to property at the age of 17; driving a vehicle taken without the consent of its owner, low range prescribed concentration of alcohol, driving without a licence, driving in a manner dangerous to the public, goods in custody and affray at the age of 18.
50 The applicant had been in custody since his arrest on 18 February 2004. His Honour noted that, of that time, the period from 1 August 2004 to 31 January 2005 was referable to time spent serving sentences for other matters. As already mentioned, the applicant's parole in respect of the armed robbery sentence was revoked but administrative errors meant that this was not enforced by requiring him to serve the balance of the sentence for that offence.
51 His Honour had the advantage of a pre-sentence report and a medical opinion from Dr Bruce Westmore. The applicant's upbringing was extremely unsettled. He was removed from his mother's custody when he was four. He and his four siblings moved between various foster homes until he was placed in the care of foster parents when he was six. He had access visits with his natural mother until she moved interstate when he was still very young and he has had no contact with her since. In more recent years, the applicant's natural father initiated contact with him and since then he has alternated between living with his foster parents in Tempe and his father at Berala.
52 The applicant's foster sister reported that the applicant experienced difficulty adjusting to life with his foster family and that anger management had constantly been an issue for him. That family, however, remains supportive of him.
53 The applicant left school midway through year 10 when he was expelled. He has had no further education and has never been employed.
54 The applicant began daily use of alcohol at the age of 17 and indicated to the Probation and Parole Officer that his drinking "was problematic". The applicant started using ecstasy at age 15 on a weekly basis. He also smoked ice methamphetamine two to three times a week continuing up until the time he went into custody.
55 The applicant told the Probation and Parole Officer that he was intoxicated on the night of each of the offences. In relation to the robbery he said that he was heavily intoxicated and was accompanied by a friend. They required money. They saw the victim and decided to take the opportunity to rob him.
56 The applicant said that he had a limited recollection of the events of 18 February 2005, also by reason of his intoxication. He said that his friends became involved in an altercation and that he simply went to assist them. The officer reported that the applicant showed little remorse for his actions and did not indicate any understanding of the impact his actions would have upon his victims.
57 At the time of the applicant's appearance before his Honour he was being kept at the MRRC and was said to present as a management issue due to his violent nature. The Probation and Parole Officer concluded her report by saying in part:
"Mr Kafovalu presents as an immature young man who displays limited insight into his behaviour. Despite a dysfunctional start to life, he appears to have enjoyed the benefit of a supportive foster family. His attitude, violent and aggressive behaviour, which continues to be demonstrated in custody, is of concern. He has expressed a desire to cease further drug and alcohol use and may benefit from treatment with regard to same upon his eventual release."
58 Dr Westmore's report contains more detail than the history obtained from the applicant but is broadly consistent with the summary contained in the pre-sentence report. Dr Westmore made a diagnosis of "conduct disorder arising in adolescence", "alcohol abuse", "polysubstance abuse" and possibly "depression".
59 Dr Westmore said that "concerns must be raised in relation to Mr Kafovalu’s personality, he may be developing an antisocial personality disorder, he certainly has some antisocial personality traits” but he refrained from making a diagnosis because of the applicant's youth and because he had only seen him on one occasion.
60 His Honour observed that the applicant's past offences clearly indicated that the applicant was capable of extremely violent rages. Dr Westmore noted that the applicant claimed as a general rule that he was not aggressive when intoxicated. In his Honour's opinion, the applicant's history of offending in Juvenile Justice facilities, and history of an assault in the MRRC, indicated that the applicant could be aggressive even when not intoxicated. Dr Westmore suggested that anything that the Court could do to direct the applicant towards a long term community-based and strictly supervised drug and alcohol rehabilitation service would be in the best interests of the applicant and the community.
61 His Honour dealt as well with factors touching the objective gravity of the applicant's offences. He said that the robbery in company was "fairly typical in most of its features in the context of offences involving the mugging of an innocent victim in public at night". However, his Honour said that two particular features made it worse. Those features were the applicant's gratuitous violence and the threat to kill Mr O'Kane. His Honour said that it was quite unnecessary for the applicant to punch Mr O'Kane in the head but he proceeded to do this a number of times. Mr O'Kane was also dragged up from the ground by his hair. His Honour said that the applicant and his companion could easily have achieved their criminal purpose simply by force of the intimidating effect of their greater numbers.
62 His Honour noted that the applicant was on parole at the time of the first of the offences and that that was a serious aggravating feature.
63 The Crown made submissions to his Honour that he should regard the applicant's criminal history as indicating a continuing attitude of disobedience of the law in the sense described in Veen v The Queen (No 2). However, after consideration, his Honour did not accept that submission. In this regard his Honour expressly took into account the age of the applicant. On the other hand, his Honour was of the view that his criminal history denied the applicant any leniency that he might otherwise have received without such a history.
64 In assessing the objective gravity of the robbery offence, his Honour took into account the fact that any planning between the applicant and his co-offender appears to have been minimal.
65 Having made his assessment of the gravity of that offence, his Honour then made a comparison with the typical robbery case described in the guideline judgement of R v Henry. Apart from the obvious difference that the present case was a robbery in company and not an armed robbery, his Honour expressed the view that the features were broadly the same. The present case involved the actual violence to which his Honour earlier referred. However, his Honour emphasised that the victim was not in the same degree of vulnerability as a shopkeeper or a taxi driver. In his Honour’s view, the criminality and subjective circumstances described in the typical case in R v Henry approximated those in the case before him. His Honour said, "Accordingly, the guideline is quite pertinent as a benchmark for sentencing here".
66 With respect to the affray, assault and resist offences, his Honour said that it was difficult to describe with precision the level of criminality they represented. As noted earlier, his Honour assessed the affray as approaching the middle of the range of objective seriousness as it represented a display of wanton gratuitous undiscriminating violence. The assault upon Mr Fleming, involving as it did the infliction of a closed head injury, was also towards the middle of the range, whilst the assault upon Constable Dumas was assessed by his Honour as being in the middle of the range. His Honour said that the resist offences were fairly typical examples of their type and not of an overly serious kind.
67 In making the assessments referred to in the preceding paragraph, his Honour expressly indicated that he took into account the serious aggravating feature that the applicant was on parole at the time of the offences. His Honour said that the only mitigating feature relating to the objective gravity of these offences was that they were probably spontaneous rather than planned criminal activity.
68 In terms of subjective mitigating features his Honour took into account, in assessing the appropriate sentence, the applicant's obvious youth. He accepted the assessment of the Probation and Parole Officer that the applicant was "an immature young man".
69 His Honour said that the pleas of guilty entered by the applicant were also matters operating in mitigation. His Honour said that they were not early pleas. The applicant was committed to the District Court for trial and entered the plea to the robbery in company charge on 22 June 2005, the third day of the week in which the matter was listed for trial. An extensive pre-trial hearing proceeded at that time in relation to the 18 February 2004 offences, including the calling of witnesses via video link from overseas. Subsequent representations were made to the DPP that the proceedings be terminated. Pleas of guilty were ultimately entered on 25 November 2005. In his Honour's view, those were pleas of guilty that still attracted a discount for the utilitarian benefit to the criminal justice system but at the bottom of the 10 per cent – 25 per cent range indicated in R v Thomson and Houlton.
70 His Honour said that there was no evidence from which he could conclude that the applicant was remorseful for his conduct. He accepted that the applicant had a limited recollection of the incident by reason of his intoxication but said that that did not prevent the applicant from having some contrition or remorse upon being made aware of the gravity of his actions and the harm done to the victims.
71 Similarly, his Honour said that there was insufficient material before him for him to conclude that the applicant had good prospects of rehabilitation or was unlikely to re-offend. The applicant had a history, which, in his Honour’s opinion, counted against the applicant in both respects. His Honour accepted that the applicant had expressed a desire to undergo rehabilitation in respect of alcohol and drugs and that that would assist, although would not assure, his avoidance of criminal behaviour in the future. His Honour said that there had been some further confirmation that the applicant had expressed a desire to undergo rehabilitation and the applicant's father gave evidence to the effect that he was willing to provide accommodation for the applicant after he was released and to assist him in finding work and supporting him in whatever was necessary for his rehabilitation.
72 His Honour expressed reservations about whether or not the applicant was truly genuine in his stated intention to reform.
73 Having regard to all of these matters, I am unable to conclude that his Honour fell into error in any of the ways contended for by the applicant in support of the second and third grounds of appeal. His Honour patently and transparently undertook, in a thorough and painstaking way, the very difficult balancing exercise that is the task of a sentencing judge. He gave weight, it seems to me appropriately, to the whole range of factors of which the applicant was both entitled to have the benefit, as well as those that were not favourable to his case. Indeed, his Honour in fact dealt in terms favourable to the applicant with some of the matters that the applicant now contends he should have considered.
74 The error referred to by me in paragraph 25 above did not, in my opinion, relevantly infect the sentencing process. As I have already indicated, in my opinion his Honour properly took into account the fact that the applicant was on parole at the time he committed the earlier offences as a matter of aggravation relevant to the determination of the appropriate sentence. In order for this Court to interfere, it would be necessary for the applicant to demonstrate that his Honour’s erroneous application of this fact to an assessment of the objective seriousness of the offence amounted to an error in the process of reasoning necessarily requiring that some other sentence be warranted in law.
75 In R v Simpson (2001) 53 NSWLR 704 at [79], Spigelman CJ said:
" [79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that "some other sentence ... is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefor" is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense."
76 In the same case, Sully J had this to say at [99] and [100]:
[100] Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence. Before that can happen properly in law, the condition specified in s 6(3) of the Criminal Appeal Act 1912 must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is "warranted in law". I agree with the observations made in this connection by Lee A-J In R v Astill (No 2) (1992) 64 A Crim R 289 at 303, 304.""[99] Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or of law; or because of the cumulative effect of errors of both fact and law. The errors, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance : R v Vachalec [1981] 1 NSWLR 351 at 353 F; R v Visconti [1982] 2 NSWLR 104 at 108 G.
77 One of the ways in which the applicant may possibly have established that some other sentence was warranted in law would have been to demonstrate that his Honour had, in effect, dealt with the issue of the applicant's offending while on parole at two separate and distinct stages of the sentencing process so as to lead reasonably to the conclusion that that factor had, or may have, been taken into account by his Honour more than once. Although having regard to the fact that his Honour actually referred to this issue more than once, and in separate and distinct portions of his Remarks on Sentence, I have not been able to discern a clear, or even a faint, pathway from what I consider to be his Honour’s erroneous reference to this factor to an obviously inappropriate enlargement of the sentence which he imposed. Even accepting, as I do, that an error was made in fact, I am unable to conclude that some other sentence is warranted in law or should have been passed.
78 There is in my opinion no good basis upon which to suggest that the primary sentencing discretion miscarried. It follows that it cannot be said that the sentence imposed was manifestly excessive.
CONCLUSION
79 In my opinion, leave to appeal against sentence should be granted and the appeal against sentence should be dismissed.
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