Vaiusu v R

[2017] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Vaiusu v R [2017] NSWCCA 71
Hearing dates:	5 April 2017
Decision date:	05 April 2017
Before:	Bathurst CJ at [1]; R A Hulme J at [3]; Beech-Jones J at [42]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence - wounding with intent to do grievous bodily harm contrary to s 33(1) of the Crimes Act 1900 – whether sentence manifestly excessive – weight given to the applicant’s background as victim of domestic violence – consideration of imprisonment leaving the applicant’s daughter with no parent – matters of weight the province of the sentencing judge – where the sentencing judge referenced all the pertinent features raised by the applicant – sentence within bounds of sentencing judge’s discretion
Legislation Cited:	Crimes Act 1900 (NSW) s 33(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 7, 44(2)
Cases Cited:	Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hanania v R [2012] NSWCCA 220 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 PK v R [2012] NSWCCA 263 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Wong v The Queen [2001] HCA 64; 207 CLR 584 Yang v R [2012] NSWCCA 49
Category:	Principal judgment
Parties:	Faafaletimu Jane Vaiusu (Applicant) Regina (Respondent)
Representation:	Counsel: Mr A Barrie (Applicant) Mr S Hughes (Crown)   Solicitors: George Sten & Co Solicitor for Public Prosecutions
File Number(s):	2015/306397
Decision under appeal	Court or tribunal: District Court Date of Decision: 15 August 2016 Before: Letherbarrow SC DCJ File Number(s): 2015/306397

Judgment

1. BATHURST CJ: I agree with R A Hulme J. I would only add this; first, the Court could only intervene if there was error by the sentencing judge, or the sentence was manifestly excessive. For the reasons given by R A Hulme J, there does not appear to be error in the approach taken by the sentencing judge, nor in my opinion could the sentence be said to be manifestly excessive in the sense of being unreasonable or plainly unjust.

2. The offence is a serious one, and even taking into account the fact it was below the middle range of objective seriousness for offences of this nature, and the extremely strong subjective case mounted by the applicant, the sentence could not be said to fall within the category of unreasonable or plainly unjust. In those circumstances, regardless of the sympathy one could have for the applicant, there is no basis on which this Court could intervene.

3. R A HULME J: Faafaletimu Jane Vaiusu (“the applicant”) seeks leave to appeal in respect of a sentence imposed upon her in the Parramatta District Court on 15 August 2016 by his Honour Judge Letherbarrow SC.

4. The applicant had pleaded guilty to an offence of wounding with intent to do grievous bodily harm, an offence contrary to s 33(1) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 25 years and for which a standard non-parole period of 7 years applies.

5. The applicant was sentenced to imprisonment for 2 years and 3 months with a non-parole period of 1 year and 2 months commencing on 15 August 2016. She is due to be released on parole when the non-parole period expires on 14 October 2017.

6. The applicant relies upon a single ground of appeal:

The sentence imposed upon the applicant is manifestly excessive.

Facts

7. The facts concerning the offence were agreed and were recounted with some additional remarks by the learned sentencing judge as follows:

“The victim is married to the offender’s sister, Malaga. On Saturday, 17 October 2015, the offender, the victim’s cousin, and the victim’s nephew were at the victim’s and Malaga’s house in Cabramatta. Whilst it is not in the agreed facts, I am satisfied from the offender’s oral evidence that, during this period of time, alcohol was drunk and she herself said that she shared half a box of mixed spirit drinks between about 5 and 6pm.

Returning to the agreed facts, between about 8 and 8.30pm, the offender, her sister and the others went to a Samoan party at the Serbian Club in Canley Vale. Whilst at that club, the victim consumed a number of alcoholic drinks, as did the offender, although she ceased drinking alcohol after 11pm. Just after midnight on 18 October, the offender, the victim, Malaga and two others, went to the Stardust Hotel at Cabramatta and played some poker machines and the victim continued to drink alcohol.

At 2.51am, the victim was removed by security from the Stardust Hotel. Malaga and two of the others went outside to calm him down. Whilst they were outside, there was a scuffle between security and the victim. Malaga tried to grab the victim and he accidentally punched her on the chin. The scuffle continued with some of the others becoming involved and the victim fell to the ground and scraped his forehead. Everyone then returned inside the club except the victim. A short time later, the offender went outside the club to speak to the victim. She then returned inside the club and Malaga, her sister, told her that the victim had hit her. Whilst the agreed facts record that this was an accident, in her evidence before me, Malaga said that she did not tell her sister that the blow was accidental.

Upon being told this, the offender went to a rubbish bin and grabbed a beer bottle and went to walk outside the hotel with it. She was stopped by one of the other persons in the group and another took the bottle from her. The offender then walked out of the club. She then found a glass beer bottle on the footpath in the laneway near the hotel. She then cracked that bottle on the ground and kept part of the broken glass.

When her sister and one of the others came outside the hotel, the offender asked them where the victim was and she was told that he was across the road at the train station. At 3.24am, the offender commenced to walk up the stairs of the Cabramatta train station with her right hand wrapped around the piece of glass that she had kept. The victim was standing at the top of the stairs on the train station concourse. He remained there when the offender got to the top of the stairs and they had a conversation. At 3.25, the offender stabbed the victim three times to the neck with the piece of glass.

Shortly thereafter, one of the others got to the top of the stairs and tackled the offender to the ground. CCTV from the train station captured the incident and the wounding and, as I said, the DVD thereof is part of the Crown bundle and I watched it. It shows that the wounding was unprovoked, regardless of what had happened earlier, in the sense that without warning and whilst the victim was simply standing next to the offender, she stabbed him quite violently with the glass shard three times to his neck area.

An ambulance was called and the victim was taken to Liverpool Hospital and admitted at about 3.55am. He had a 10 centimetre transverse wound to his neck, left of the mid-line, with active bleeding. There were three additional superficial incised wounds in the same area which were not bleeding. The victim underwent surgery and the 10 centimetre wound was sutured.

On 19 October 2015, the offender attended Cabramatta Police Station and participated in an ERISP. She admitted to having stabbed the victim because she was “pissed off”. The offender said that she was not intoxicated at the time and she said that she had broken the beer bottle because she wanted something “sharp” and that she hid the piece of glass in her hand so the others would not see it.”

The applicant’s personal circumstances

8. The applicant was born of parents of Samoan heritage in 1990. She was raised in New Zealand and came to Australia with her family when she was aged 14. Whilst in New Zealand she was raised by her grandparents due to her mother often being absent because of employment commitments. She described her relationship with her mother as one offering little or no affection or emotional support. She has had no consistent contact with her biological father and did not know his identity until she was aged 14.

9. She described her relationship with her stepfather as tumultuous and there was domestic violence in the home. The sentencing judge was satisfied that there was a degree of social deprivation in the applicant’s early upbringing.

10. The family initially resided with uncles and cousins after they came to Australia. When the applicant was 15 she went to live in Broken Hill with an aunt with whom she had a good relationship. She completed her education in Year 12 and returned to Sydney. She then went back to New Zealand for about a year where she lived with relatives before returning to Australia at the age of 19. She met her future husband during that time.

11. The applicant reunited with her future husband in Australia when she was about 20 and they started living together when she was about 22. She engaged in unskilled employment until the birth of her child in March 2013.

12. Shortly before the birth of her daughter the applicant’s husband was diagnosed with stage four stomach and liver cancer. He had been unwell for about 18 months up to that point. His condition deteriorated quickly after his diagnosis and he passed away in April 2015. The sentencing judge accepted that his death “had a terrible effect upon her emotionally”.

13. The applicant commenced drinking alcohol when she was about 16 and engaged in occasional binge drinking but the judge was satisfied that alcohol was not a problem for her before her husband’s death. However he noted that her grief reaction was such that she started to use alcohol significantly.

14. A report by a clinical psychologist, Ms Danielle Hopkins, was tendered in the sentence proceedings. The judge was satisfied on the basis of the opinion of Ms Hopkins, as well as a report by the applicant’s treating psychologist, Ms Michele Jackson and evidence from the applicant’s sister that after her husband’s death the applicant commenced to suffer from depression significantly to the point where she would have met a diagnosis for a major depressive disorder and that this condition was untreated at the time of the subject offending. The applicant’s sister had given evidence that she was often crying and locking herself in her room. The judge was satisfied that the applicant’s mental condition at the time of the offence was “such that her moral culpability is reduced and that matters such as general deterrence, retribution, and denunciation have less weight”.

15. The judge had regard to the applicant having sought treatment since the offence and had received psychological counselling from two practitioners. His Honour was satisfied that her depression could be adequately managed in custody but accepted nonetheless that it would make any period in custody “somewhat more burdensome for her, as will the possibility that she will be without her daughter in custody”.

16. The judge found that the applicant’s prospects of rehabilitation were “very good”. This finding was made on the basis of the apparent support of family members in attendance at court; the fact that she had been on bail for some time and not reoffended; and that she had been receiving treatment.

17. The judge was satisfied that the applicant was “very remorseful”. His Honour noted that the applicant had apologised to her victim who had forgiven her. His Honour also regarded the plea of guilty as a demonstration of remorse.

18. Special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found so as to justify the non-parole period being at a lower level than otherwise would be the case. The finding was made on the basis that this would be the applicant’s first time in custody; she was still relatively young; and that she would need a longer period on parole to facilitate her rehabilitation.

Finding as to objective seriousness

19. The judge found that the objective seriousness of the offence fell below the middle of the range. It had been submitted on behalf of the applicant that it was “at the lower end of the range” whilst the representative of the Crown had submitted that it was between the middle and the bottom of the range.

20. The finding by his Honour was made after he referred to the considerable violence in the attack which was facilitated by the use of a piece of broken bottle. He regarded the use of a weapon as an aggravating feature. His Honour noted that the victim had recovered without any ongoing disabilities apart from some scarring but found that the attack was “quite a vicious one and without any immediate provocation”. He noted that it occurred after the applicant had attempted to arm herself with a bottle inside the hotel which was taken off her but she then went outside and armed herself again. She had then walked some distance in pursuing the victim with the obvious purpose of committing the assault in question.

Submissions for the applicant

21. The written submissions for the applicant included acceptance of the finding by the sentencing judge that the objective seriousness of the offence was below the middle of the range. It was contended that "the real issue in this case is the weight to be given to the [applicant’s] subjective circumstances". These were described as "exceptional" such that a sentence of not more than two years should have been imposed, thus making the applicant eligible for consideration of an intensive correction order pursuant to s 7 of the Crimes (Sentencing Procedure) Act.

22. Counsel for the applicant listed the following subjective features as particularly pertinent:

The applicant was "quite young", aged 25.

There were only driving offences on her record; she was sentenced as a first offender.

There was a plea of guilty at the first opportunity.

The applicant was affected by alcohol at the time of the offence.

She had suffered the recent loss of her husband to cancer.

She had a 3 year old daughter from whom she would likely be separated if sentenced to full-time custody.

She suffered from untreated major depression at the time of the offence.

Her attack on the victim was in response to his [perceived] assault upon her sister.

She had a difficult upbringing in New Zealand, particularly as a result of violence perpetrated by her step-father.

Notwithstanding her disadvantages, she had completed secondary schooling with quite good results.

She had no grief counselling prior to the offence.

She had expressed genuine remorse.

She had been forgiven by both her sister and the victim.

Her prospects of rehabilitation were accepted as being very good.

23. It was submitted that the judge failed to take sufficient account of the applicant's background as the direct and indirect victim of domestic violence. The judge noted that her step-father had been violent towards her mother but failed to mention that included in the history the applicant provided to Ms Hopkins was that he had also been violent towards her; punching her on several occasions and causing black eyes.

24. It was submitted that the judge had also failed to mention her account of the applicant's late husband having "verbally gone off at me" and having punched her on one occasion, chipping her tooth, while she was holding her daughter.

25. It was also submitted that the judge failed to mention that the applicant witnessed domestic violence by her brother-in-law (the victim of the index offence) towards her sister after she had moved to live with them after the death of her husband.

26. It was put in oral submissions today that his Honour made no reference to the applicant’s daughter being left without any parent to care for her in the event the applicant was sentenced to full-time custody.

27. It was submitted that in light of the subjective matters listed above, and the history of domestic violence in the applicant's life, the sentence was manifestly excessive and that this Court should intervene by imposing a sentence of two years or less and consider ordering that it be served by way of an intensive correction order.

Principles

28. When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55].

1. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

2. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

3. It is not to the point that this Court might have exercised the sentencing discretion differently.

4. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

5. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

29. To the extent that the applicant complains of insufficient weight having been given to the applicant's subjective case it must be borne in mind that matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. Further, as Button J observed in Hanania v R [2012] NSWCCA 220 at [33], "the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed".

Determination

30. All of the pertinent features of the applicant's subjective case listed above (at [22]) were the subject of specific reference by the primary judge in his remarks on sentence and so it cannot be said that he overlooked any of them.

31. The specific complaints raised in the applicant's submissions (see above at [23]-[25]) must be assessed in light of the sentencing judge having proceeded directly to delivering an ex tempore judgment at the conclusion of hearing the evidence and submissions. As Spigelman CJ observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 577 [48], "The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed". It has also been said that "economy of expression in an ex tempore statement of reasons should not too readily be assumed to reveal oversight": PK v R [2012] NSWCCA 263 at [46] (McCallum J).

32. The complaint about the failure of the judge to refer to the applicant being a victim of violence at the hands of her step-father cannot be sustained. It was detailed in the report of Ms Hopkins (at [7]; [31]). His Honour commenced his review of the subjective material by saying, "Her subjective circumstances, all of which I have taken into account, appear in the various reports …". (ROS 5.1)

33. It is abundantly clear that his Honour was cognisant of the domestic violence to which Ms Hopkins made reference. She introduced the topic by saying that the applicant "stated that her relationship with her stepfather, who came into her life when she was around six years of age, was tumultuous". His Honour said, "She described her relationship with her stepfather as tumultuous", albeit he then only made reference to domestic violence against the applicant's mother.

30. It is true that the judge made no mention of the applicant's late husband verbally "going off at her" and punching her on the occasion of their daughter's first birthday party (Hopkins report at [15]). However, the applicant also told Ms Hopkins that she was not fearful of her husband and that they had "worked through it". This aspect was not of sufficient significance to warrant his Honour making specific mention of it.

31. It is also true that the judge made no mention of past domestic violence between the victim and the applicant's sister. Again, this was not something that required specific mention by the judge. The predominant feature of the applicant's case as to her motivation in committing the offence was her mental condition. The judge accepted without question that her moral culpability was reduced on this account and he made consequential findings that were favourable to the applicant.

32. As to the complaint raised about the applicant’s child being left without parental care, the first point is that this was not specifically raised as a relevant issue for his Honour to take into account. Secondly, it should not be readily concluded that he was not unmindful of it. Thirdly, his Honour was given to understand that the child would be cared for by the applicant’s supportive family. His Honour was informed that the applicant intended to make an application to have her child with her in custody if that transpired, but clearly that was only a possibility. In the event that application was not successful, his Honour made a finding in the applicant’s favour (see above at [15]).

33. An important aspect in determining whether the sentence imposed can be characterised as manifestly excessive is the very high maximum penalty of 25 years imprisonment provided by Parliament for an offence contrary to s 33 of the Crimes Act. The guidepost of the standard non-parole period of 7 years must also be borne in mind: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27].

34. In this case, the starting point of 3 years adopted by the sentencing judge before reduction on account of the applicant's early plea of guilty to 2 years and 3 months was commensurate with an assessment of below mid-range objective seriousness, reduced moral culpability and a subjective case that warranted substantial mitigation of penalty. The reduction of the non-parole period to 1 year and 2 months, when by the usual statutory proportions it would otherwise have been 6 months longer, was also reflective of a measured approach to the assessment of sentence.

35. The applicant’s subjective case called for a considerable degree of sympathy but I cannot perceive that the judge approached it otherwise. He was, of course, bound to sentence in accordance with established sentencing principles. This is what he did.

36. In the end, I am not persuaded that the sentence was beyond the legitimate bounds of the primary judge's sentencing discretion.

Orders

41. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

42. BEECH-JONES J: The background to this application for leave to appeal is set out the judgment of R A Hulme J. At the time of her sentencing, the Applicant undoubtedly presented a strong subjective case. To that end the sentencing judge made a number of findings that were favourable to her. Nevertheless the nature of her attack on the victim was such that no sentence other than one which involved full time custody was warranted. While the imposition of a sentence of lesser duration was open to the sentencing judge, I am not satisfied that the sentence actually imposed was manifestly excessive.

43. At the hearing of this application, Counsel for the Applicant submitted that the sentencing judge gave insufficient weight to the effect on the Applicant of the separation from her daughter that would follow if she was incarcerated. However the likelihood of separation was a matter specifically adverted to and considered by the sentencing judge. Counsel for the Applicant also submitted that the sentencing judge did not consider the effect on the Applicant’s daughter of her being separated from her mother in circumstances where her father passed away. The difficulty with that contention is that no submission to that effect was made to the sentencing judge. Further evidence was not sought to be adduced on this application concerning the current circumstances of the Applicant’s daughter and the effect on her of being separated from her mother. In those circumstances the difficult questions concerning how sentencing courts address hardship to third parties such as children of offenders do not arise.

44. I agree with the orders proposed by R A Hulme J.

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Decision last updated: 12 April 2017