Ulutui v The Queen
[2012] VSCA 301
•12 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0208
| VENA ULUTUI | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | HARPER and TATE JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 2012 | |
DATE OF JUDGMENT: | 12 December 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 301 | |
JUDGMENT APPEALED FROM: | DPP v Ulutui (Unreported, County Court of Victoria, Judge Gullaci, 11 May 2011) | |
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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary (persons present), attempted robbery, robbery – Home invasion – Co-offenders sentenced on basis of applicant’s alleged primary role and use of weapons – Applicant sentenced on different factual basis of his subsidiary role and co-offenders’ use of weapons – Co-offenders significantly younger than applicant – Applicant with intellectual deficits – Co-offenders sentenced for additional and some different offences – Differences appropriately reflected in sentences imposed – No breach of parity principle – Application refused
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
HARPER JA:
I have had the benefit of reading in draft the reasons of Williams AJA and agree for those reasons that the application for leave to appeal against sentence should be dismissed.
TATE JA:
I agree with Williams AJA.
WILLIAMS AJA:
The applicant seeks leave to appeal from the following sentence imposed upon him in the County Court on 11 May 2011:
Charge
Offence
Sentence
Cumulation
1
Aggravated burglary
2 years’ imprisonment
Base sentence
2
Attempted robbery
12 months’ imprisonment
6 months
3
Robbery
18 months’ imprisonment
9 months
Total effective sentence: 3 years and 3 months’ imprisonment
Non-parole period: 2 years
Pre-sentence detention: 20 days
S 6AAA declaration: 4 years, 6 months’ imprisonment with a non-parole period of 3 years.
Circumstances of the offences
At approximately 4.45am on Wednesday 18 February 2009, Margaret Shimmins, her nine year old son, Timothy Shimmins, and David O’Shea (aged 44) were all asleep in Ms Shimmins’ home in Chadstone. At the rear of the
house in an attached unit were Toula Derkos, Leigh Swan and Dec Chu who were all also asleep.
Ms Shimmins woke to a knock at the door. She answered the door, but could not see anyone. She returned to her bedroom for a torch. She went again to the front door and looked out. She was confronted by two men saying that they wanted to come in. She asked if they were looking for ‘Toula’ and gave them directions to the rear unit. The two men insisted on entering the house and there was a short struggle at the front door. Ms Shimmins called out to Mr O’Shea who tried to stop the men from coming in. The men pushed into the house and one punched Mr O’Shea in the face whilst the other demanded drugs and money. Ms Shimmins told them that she did not have anything to give them.
The applicant and another man then also entered the house. When he entered, the applicant knew that there were people present in the house. He intended to steal drugs, money and other property and was party to an agreement with his co-offenders to do so. The applicant also entered knowing that violence or the threat of violence would be used to put the agreement into effect, but he was unaware that his co-offenders were armed with hammers. He had not agreed that weapons would be used to steal any property and he was not complicit in their use or in the infliction of serious injury on any person.
The second man entering the house with the applicant joined in the assault on Mr O’Shea. Whilst this was happening, one of the intruders grabbed Ms Shimmins by the hair. She was dragged towards the back of the house where other residents, Toula Derkos, Leigh Swan and Dec Chu, were sleeping. The intruders were repeatedly saying, ‘Give me my money, give me my money’ and ‘Give me my gear, I want my gear’.
Ms Shimmins could see that Mr O’Shea was still being punched by two of the intruders and she told them to stop hurting him. An intruder with a hammer ordered Mr O’Shea to stay where he was, threatening that he would be hit if he moved. After some minutes, Mr O’Shea was also taken to Ms Derkos and Ms Swan’s room in the rear unit. He was told to sit on the floor there, with them and Ms Shimmins (Count 1, aggravated burglary (persons present)).
The applicant’s co-offenders were Brandon Tusivili and Vencis Lafaele who were 18 years old and Talailama Motuapuaka, aged 21. The applicant was then 33 years of age. Mr Tusivili was armed with a hammer and Mr Motuapuaka and Mr Lafaele were aware of that.
Mr Chu had been asleep in the lounge room of the house and was woken by a loud noise. Mr Tusivili entered his room and demanded money from him. When he denied having any, Mr Lafaele punched him twice to the head. Another intruder struck him with a hammer. Mr Motuapuaka picked up a coffee table and struck Mr Chu with it. When it broke, he hit him with parts of the coffee table. Mr Chu suffered serious injuries including a compound fracture to his lower left leg (the treatment of which required the insertion of two metal pins), bruising to his head and abdomen pain. He was later taken to hospital by ambulance and spent four days as an inpatient. It was not alleged that the applicant was complicit in this attack, but he was present throughout (Count 2, attempted robbery (Chu)).
Mr Swan was in bed with his girlfriend, Ms Derkos. He was awakened by a panic-stricken Ms Derkos shaking him. Two of the men entered their bedroom, screaming ‘Give us all your cash’. They continued to demand cash as Ms Derkos handed over $500. Whilst this was happening, she could see the assault on Mr Chu who was lying on the couch in the lounge. One of the men demanding money from Ms Derkos had a hammer and menaced her with it; he took a Dell laptop computer, an LCD screen, an iPod and an iPod dock.
Another man entered the room and kicked Mr Swan in the head and face whilst demanding money. Using a hammer, he hit Mr Swan on his arm, the back of his head and his legs. Mr Swan suffered serious injury as a result, including an undisplaced cracked fracture of the lateral epicondyle of the right humerus. During this assault, one intruder said to another of the applicant’s co-offenders, ‘Get the pistol’. The Crown case was that the applicant was present and complicit during the robbery and the attack on Mr Swan (Count 3, robbery (Derkos)).
Throughout the victims’ ordeal, the intruders were ransacking the premises and Ms Shimmins was terrified for her nine year old son. Indeed, it was the nine year old boy who rang 000 to alert police.
Police arrived. They surrounded the premises and arrested the applicant and his three co-accused. The applicant denied assaulting Ms Shimmins, making demands for cash and the alleged theft, but conceded that he was present.
The applicant’s co-offenders were sentenced on 30 November 2009 as follows:
Count Offence Tusivili Motuapuaka Lafaele 1 Aggravated burglary (armed with hammer) 26 months 2 Aggravated burglary (in concert with Tusivili) 30 months 21 months 3 Attempted armed robbery (Chu) 18 months 24 months 4 Attempted armed robbery (Chu) in concert with Tusivili and Motuapuaka 16 months 5 Causing serious injury recklessly (Chu) 24 months 30 months 20 months 6 Causing serious injury recklessly (Swan) 18 months 25 months 14 months 7 Theft (Derkos) 9 months 12 months 9 months Total effective sentences 4 years
2 months5 years
2 months3 years
3 monthsNon-parole periods 2 years 3 years 18 months
What is significant for this appeal is that the applicant’s co-offenders were all sentenced on a different factual basis from that upon which the applicant was later to plead guilty. They had pleaded guilty on the basis that they had acted in concert with him and that it was he who had played the more prominent role in the offending. It was he who was alleged to have struck Mr Chu with a hammer. He was also alleged to have kicked Mr Swan and to have hit him with a hammer, causing him serious injuries.
Senior counsel for the respondent told the Court that the prosecution had revised its view of the facts before the applicant’s plea hearing, after considering a report by the neuropsychologist, Dr Lindsay Vowells. After testing and assessing the applicant on 3 February 2011, Dr Vowells had concluded that:
·his intellectual ability was likely to be in the extremely low range, with a full scale IQ of 65;
·he had a number of intellectual deficits;
·he was not good at recognising the likely outcomes of actions and choices or at appreciating the probable consequences of specific actions;
·he was restricted by a lack of confidence and poor self esteem;
·he was more likely to act reactively or at the direction of others than upon his own initiative;
·testing indicated that he suffered depression described as being in the range of significant clinical depression;
·he demonstrated several significant cognitive difficulties;
·problems with his executive function would justify a diagnosis of frontal lobe syndrome;
·he appeared motivated to maintain his reported abstinence from substances; and
·he did have some positive abilities.
Having considered Dr Vowells’ views, the prosecution had accepted that the applicant had played a more subsidiary role in the offending than had previously been thought. That acknowledgment had been reflected in the difference between the charges he ultimately faced and the crimes for which his co-offenders had been sentenced. He had been charged with aggravated burglary on the basis of him knowing that persons were present (rather than aggravated burglary involving being armed with a hammer), attempted robbery (and not attempted armed robbery) of Mr Chu and robbery (rather than theft) in relation to Ms Derkos. He had not been charged with either of the offences of causing serious injury.
Proposed ground of appeal
The applicant’s sole proposed ground of appeal relates to the comparison between his sentence and those imposed upon his co-offenders. It is expressed in these terms:
In the light of the applicant’s role in the offending and the findings made by the learned sentencing Judge the principle of parity required that a lower total effective sentence be imposed on the applicant.
Personal circumstances and sentencing considerations
Before I turn to the submissions in the appeal, I will refer to the personal circumstances of the applicant and his co-offenders and to the sentencing considerations taken into account by the learned sentencing judge, who had also dealt with the applicant’s co-offenders some 18 months earlier.
Brandon Tusivili
Mr Tusivili was 19 when sentenced and had been 18 years old when he committed the offences at Ms Shimmins’ house.
He was born in New Zealand. His family came to Australia, but subsequently returned to New Zealand in 2005. He completed his education to Year 12 in New Zealand and came to Australia in 2008. He lived with relatives in Dandenong. He worked in a factory until December 2008. He was then unemployed before obtaining work first in a coding factory in Hallam and then in a door making factory in Dandenong. Mr Tusivili had had alcohol problems from the age of 17 and had been drinking heavily before his offences on 18 February 2009.
In the period leading up to his sentencing on 30 November 2009, Mr Tusivili had been involved with support networks under a supervised bail program and, from June 2009, had been attending youth groups. Although he had used cannabis up to two weeks before he was sentenced, he had cut down on his drinking and had found a job. Despite the bail program, he had been charged on 11 April 2009 with offences including aggravated burglary, recklessly causing injury and assault. However it appeared to the learned sentencing judge that there had been no resulting impact on the program. He was living with an aunt when he was sentenced.
The judge took Mr Tusivili’s youth into account and considered that the principles outlined in R v Mills[1] applied to him. His Honour had regard to the significance of his rehabilitation, his early guilty plea, his lack of prior convictions and his progress under the supervised bail program. The judge also noted the seriousness of his crimes, which involved violence and the use of weapons on two different victims. He noted that a sentence of imprisonment of a young offender in an adult institution should only be imposed as a last resort. Nevertheless, citing the significant need for general deterrence, his Honour rejected the option of a youth detention order for Mr Tusivili.
[1](1998) 4 VR 235 (‘Mills’).
Talailama Motuapuaka
Mr Motuapuaka was 22 when sentenced and 21 when he offended. The eldest of four siblings, he was born in New Zealand and came to Australia with his family at the age of six. They moved frequently. He had attended a number of schools before leaving the last of them half way through his year 10 studies. He had started an apprenticeship, but had not continued it, because of the low wages paid. He had worked in a number of factories and then in demolition.
Mr Motuapuaka had begun drinking alcohol at 13 or 14 with friends and, at the age of about 19 or 20, he had begun using amphetamine and ‘ice’. He had given instructions that he had stopped using those drugs about six months before the subject offences. He had complied with the conditions of his parole.
Psychological testing indicated that Mr Motuapuaka suffered depression characterised as being within the moderate range and it was thought that his prospects of rehabilitation would benefit from sustained psychological intervention upon release.
The learned sentencing judge noted Mr Motuapuaka’s relative youth, his early guilty plea, his successful completion of a short parole period and his prospects of rehabilitation (which his Honour thought would be conditional upon his ability to control his alcohol and drug abuse). He noted that Mr Motuapuaka was intending to plead guilty in relation to a number of outstanding matters. As he had done in the case of Mr Tusivili, his Honour considered general deterrence, just punishment and denunciation all to be significant sentence considerations.
Vencis Lafaele
Like Mr Tusivili, Mr Lafaele was only 18 years old when he offended and 19 when sentenced. He was then subject to a nine month probation order imposed by the Children’s Court on 25 June 2009 for theft and recklessly causing injury on 8 March 2008.
Although Mr Lafaele had a propensity for violence when affected by alcohol, he had taken some steps towards rehabilitation. He lived with his partner. They had a two year old son and were expecting their second child. He was employed, working night shift work in a bakery. He had limited education and had left school at 17. He had a limited employment history and had worked in the bakery since April 2012.
A reporting psychologist had concluded that Mr Lafaele’s reported history did not suggest alcohol dependency or a particular propensity for violence, that the trouble he had been in appeared to be predominantly peer related (sometimes involving alcohol), that he was remorseful and that his risk of re-offending was very low.
The learned sentencing judge had not been persuaded by that last assertion. He noted that Mr Lafaele had been before the Dandenong Magistrates’ Court some weeks earlier, on 30 October 2009, in relation to charges of recklessly and intentionally causing injury and assault. On the same day, he had been also been before the Children’s Court on charges of recklessly causing injury, assault in company and a weapons offence. Further, there was an outstanding warrant on a count of affray. The court had been assured, nevertheless, that Mr Lafaele had not offended since February 2009.
His Honour also took into account Mr Lafaele’s youth, the applicability of the Mills principles, his lack of relevant prior convictions, his early guilty plea and his positive response to probation. He referred to his employment, stable relationship and family situation and the positive steps he had taken towards rehabilitation. His Honour referred to the estimate that his cognition would be described as being in the low/average to borderline range, with limited insight.
The judge concluded that Mr Lafaele was vulnerable and had unresolved alcohol issues, in circumstances where there was a link between his offending and alcohol abuse. Just punishment, denunciation and general deterrence were important factors in relation to his sentence. His Honour also rejected the option of juvenile detention for Mr Lafaele, once again acknowledging that adult prison was a disposition of last resort, but expressing the view that the seriousness of the offending meant that youth detention was not within the range of appropriate sentencing options.
The applicant
The applicant was born in Samoa on 13 January 1976. In contrast to his youthful co-offenders, he was 33 when he offended.
At the age of six, he had fallen and suffered a brain injury. He was reported to have been in a coma for some months. His recovery had been slow and his family had moved to New Zealand for better medical treatment and educational opportunities for him. The applicant subsequently came to Australia with members of his family when he was 18 years old His education had been limited and he had left school at year ten level.
He had abused alcohol and drugs from his teenage years and amphetamine in the years leading up to his sentence. The learned sentencing judge noted his efforts to avoid alcohol abuse. He had been drinking less and had tried to limit his contact with others who abused alcohol, including family members. His Honour, nevertheless, considered him vulnerable to relapse in that regard.
After leaving school, the applicant had worked in unskilled jobs. He had, however, been able to learn welding and had worked as a welder in what his Honour referred to as ‘quite complex and demanding circumstances’[2] in the manufacture of truck bodies. The judge described his work history as good, while noting that he had not been employed after being charged with the offences for which he was being sentenced.
[2]DPP v Ulutui (Unreported, County Court of Victoria, Judge Gullaci, 11 May 2011) [10].
The applicant had prior convictions for violent offending in the Dandenong Magistrates’ Court. On 12 August 1997, a Community Based Order had been imposed upon him after convictions for unlawful assault and assault in company. He had breached that order. A further order of the same type had been made against him on 22 September of that year. On 15 May 2002, he had been sentenced to six months’ imprisonment (with five months suspended for 18 months) for causing injury intentionally.
The judge noted that the applicant’s convictions were old, but considered them relevant to the sentencing considerations of rehabilitation and specific deterrence.
The judge took into account in the applicant’s favour that:
·he had pleaded guilty (albeit late, but after an early admission of guilt in relation to the aggravated burglary);
·he had no recent convictions for violence;
·he had a stable relationship and three young children;
·he had reasonable prospects of rehabilitation, if he controlled his drug and alcohol use;
·he had not offended since February 2009;
·his low intellect attracted the application of Verdins[3] principles, requiring sensible moderation of general and specific deterrence as sentencing considerations;
·his low intellect also meant that his relative age should not be regarded as an aggravating feature of the offending;
·whilst his co-offenders had pleaded guilty to aggravated burglary on the basis of being armed with a hammer, he had not been armed with or used a hammer;
·he had been unaware that others were armed with hammers and was not complicit in their use; and
·he had not been charged with causing serious injury.
[3]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
The judge concluded, in light of the relevant Crown concessions relating to his role in the offending, that there were good reasons why the applicant’s sentences should be lower than those imposed on the co-accused.[4]
[4]DPP v Ulutui (Unreported, County Court of Victoria, Judge Gullaci, 11 May 2011) [13].
His Honour noted the prosecution submission that the appropriate sentencing range was between two and a half and three and a half years’ imprisonment with a minimum term of between 18 months and two years and six months. The applicant had argued for a wholly suspended sentence of imprisonment as appropriate for the aggravated burglary with a community based order in respect of the other two counts
The learned sentencing judge considered that the applicant’s offending called for a term of imprisonment, some of which ought to be served immediately. He emphasised the need for general deterrence and denunciation, given the seriousness of home invasions at night ‘to rectify drug transactions which are thought to have gone wrong’[5] and the resulting community disquiet, anxiety and fear.[6] He also thought some cumulation appropriate because of the seriousness of the applicant’s offences and the different victims involved.
[5]Ibid [18].
[6]Ibid [19].
The judge went on to fix the minimum term with reference to the guilty plea, the applicant’s personal circumstances and young family, what his Honour considered to be his reasonable prospects of rehabilitation, the absence of any recent convictions for violent offences and the fact that his offending involved one course of conduct. The judge also thought that he would benefit from Parole Board supervision.
Submissions and discussion
The applicant argues that he should have received a lesser sentence, in light of those previously imposed upon by his co-offenders, and, in particular, Mr Lafaele. He relies upon the High Court’s decision in Lowe v R,[7] where Mason J said:
… the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.
… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.[8]
[7](1984) 154 CLR 606.
[8]Ibid 613-4.
The parity principle will operate, even when those sentenced are not strictly co-offenders, but are engaged in a ‘common criminal enterprise’.[9] It is common ground that the principle is applicable in this case, notwithstanding the different offences charged.
[9]DPP v Farrugia [2011] VSCA 24 [15], [23] (Redlich and Bongiorno JJA).
The applicant compares his situation with that of his two much younger co-offenders, Mr Lafaele and Mr Tusivili. He submits that the learned judge failed to impose lower sentences upon him, having indicated that he would. His lesser role should have been reflected in greater disparity, as he had not been complicit in the use of weapons or the assaults, he was intellectually disabled and had comparatively better rehabilitation prospects.
The respondent maintains that the parity principle has been observed, because the applicant’s argument depends upon the differentiation between their roles according to the agreed facts in relation to which he pleaded guilty. The respondent emphasises the differences between the agreed facts upon which the applicant and his co-offenders were sentenced. In what senior counsel describes as an artificial exercise, they were all sentenced on the basis of complicity (except for Mr Motuapuaka who was sentenced for his assault on Mr Chu with the table).
The applicant’s total effective sentence was the same as that imposed upon 19 year old Mr Lafaele and less than that imposed in the case of the others. He and Mr Tusivili received the same minimum term, whilst Mr Lafaele was given a 25 per cent shorter non-parole period. It is very significant for the purposes of this application that the judge rejected detention in a Juvenile Justice Centre as an alternative to imprisonment for Mr Tusivili and Mr Lafaele (with whom the applicant compares himself). His Honour explained that decision with reference to the number, gravity and nature of their crimes, the circumstances of their offending which featured violence, as well as the fact that it involved discrete crimes with different victims upon whom there had been serious impact. Despite their personal circumstances, the judge considered that rehabilitation should give way to just punishment, denunciation and general deterrence as sentencing objectives.[10]
[10]R v Lafaele; R v Motuapuaka; R v Tusivili (Unreported, County Court of Victoria, Judge Gullaci, 30 November 2009) [29], [30], [55].
Further, as the respondent points out, whilst the applicant’s co-offenders may have known that Mr Tusivili had a hammer when they entered the house, it would have rapidly become apparent to him that a hammer was being used in the assaults which took place in his presence.
It should also be observed that, during the plea hearing before the learned sentencing judge, the applicant’s counsel submitted that there did not need to be ‘any heavy emphasis’ on parity, given that his co-offenders had substance use and abuse issues, whilst his case raised the quite different issue of intellectual disability.[11] It also appears that he went on to expressly eschew reliance upon any comparison between the applicant’s situation and that of Mr Lafaele.[12]
[11]Plea transcript 29 April 2011, T 59.2-7.
[12]Plea transcript 29 April 2011, T 60.15.
Buchanan JA’s observations in Hafner v The Queen[13] with regard to co-offenders facing the same charges are pertinent. His Honour said:
While it is obviously desirable that persons who are parties to the commission of the same offence should receive the same sentence, matters such as age, background, previous criminal history, character and the role played in the commission of the offence have to be taken into account. Some disparity between sentences imposed upon co-offenders is not in itself a ground for intervention by an appellate court. The difference between the sentences must be manifestly excessive. The Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the part of the accused on whom the heavier sentence is imposed or on the ground the disparity gives the appearance that justice has not been done.[14]
[13][2012] VSCA 190.
[14]Ibid [17].
In my view, the many differences between the personal circumstances and roles in the offending behaviour of the applicant and his co-offenders and the significance of relevant sentencing considerations were appropriately reflected in the sentences imposed. I consider the learned sentencing judge’s decisions to impose sentences of imprisonment rather than order detention in a facility for young offenders very significant. I agree with the respondent that it is not reasonably arguable that any disparity between the applicant’s sentence and those of his co-offenders is manifestly excessive or indicates that justice has not been done.
The application should be dismissed.
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