Vaovasa v R

[2007] NSWCCA 253

Reported Decision: 174 A Crim R 116

New South Wales

Court of Criminal Appeal

CITATION:	Vaovasa v R [2007] NSWCCA 253 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	06/08/2007
JUDGMENT DATE:	28 August 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Howie J at 2; Harrison J at 34
DECISION:	Application for leave to appeal is granted but the appeal is dismissed.
CATCHWORDS:	Criminal Law - Sentencing - Disparity with co-offenders - concurrent sentences for offences against different victims - sentences unduly lenient for all offenders - Court refused to intervene.
LEGISLATION CITED:	Crimes Act 1900 - s 97(1)
CASES CITED:	R v MMK (2006) 164 A Crim R 481 Cahyadi v R (2007) 168 A Crim R 41 Pearce v The Queen (1998) 194 CLR 610 R v Weldon and Carberry (2002) 136 A Crim R 55 R v Wilson [2005] NSWCCA 219 R v KM [2004] NSWCCA 65 R v Dunn [2004] NSWCCA 41 R v House [2005] NSWCCA 88 R v Henry (1999) 46 NSWLR 346 Tatana v R [2006] NSWCCA 398
PARTIES:	Benjamin Teliu Vaovasa v Regina
FILE NUMBER(S):	CCA 2006/5135 (formerly 2007/1039)
COUNSEL:	M. Barr - Crown T. Gartelmann - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0384
LOWER COURT JUDICIAL OFFICER:	Boulton ADCJ
LOWER COURT DATE OF DECISION:	09/03/2006

2006/5135 (formerly 2007/1039)

McCLELLAN CJ AT CL
HOWIE J
HARRISON J

TUESDAY 28 AUGUST 2007

Benjamin Teliu VAOVASA v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with Howie J.

2 HOWIE J: The applicant was convicted after trial of three offences of robbery in company. Each was an offence contrary to s 97(1) of the Crimes Act for which a maximum penalty of imprisonment for 20 years is prescribed. On 9 March 2006 Acting Judge Boulton (the Judge) sentenced the applicant on each count to a term of imprisonment made up of a non-parole period of 3 years 9 months and a total term of 5 years. The sentences dated from 19 January 2005 and the applicant is eligible to be considered for release to parole on 18 October 2008.

3 Briefly the facts are that the applicant was one of six men who attacked four persons crossing the Pyrmont Bridge in the early hours of 19 January 2005. Demands were made on three of the persons for their mobile phones and money. Although one of the persons apparently indicated that he had a knife, no knife was seen and the Judge sentenced the applicant on the basis that he was involved in a common purpose of robbery in company. Three mobile phones and a sum of about $200 were taken. Evidence at the trial consisted of CCTV footage and the Judge in his remarks indicated that the applicant could be seen in physical contact with one of the victims. The applicant had given evidence at the trial that he was attempting to disengage himself from attack by the victim.

4 There were five persons convicted of involvement in the three robberies. Two were juveniles and were dealt with in the Children’s Court. There were two other adults convicted at the trial with the applicant. They can be referred to as Fauatea and Faitea.

5 There are two grounds of appeal. The first is said to be an erroneous factual finding made by the Judge and the second complains that the sentence imposed upon the applicant gives rise to a legitimate sense of grievance when compared with the sentences imposed upon the co-offenders.

6 The first ground complains of a finding made by the Judge that was not supported by the evidence at the trial. The Judge in the course of the sentencing remarks stated:

There were a number of aspects of the evidence which suggested, indeed evidence from yourself, that you occupied some leadership role in the group.

A little later he referred again to this finding.

7 It was submitted that there was no evidence to justify that finding in either the evidence of the CCTV footage or the evidence of the applicant at the trial. It was also submitted that the fact that the applicant was the oldest of the persons involved in the robbery did not justify the finding. This Court does not have before it the evidence in the trial. However counsel for the applicant and the Crown have referred to the evidence in some detail.

8 It is difficult to know what to make of the remark made by the Judge. He does not indicate in what way the applicant occupied “some leadership role in the group” or to what use he made of the finding. If this finding were to be taken into account as an aggravating feature, particularly as there were juveniles involved and the applicant was aged 27, it might be expected that the Judge would amplify that suggestion both factually and by indicating how it impacted upon an assessment of the applicant’s culpability and hence the sentence to be imposed upon him. Factual findings as to the role taken by an offender are always of importance where there are multiple offenders and a question of parity arises. Vague statements suggesting some distinction between the offenders, such as that made by the Judge about the applicant, are unhelpful at best and at worst lead to a complaint such as that now before the Court.

9 In this case the Judge had the benefit of seeing the CCTV footage and hearing all the evidence including that given by the applicant. He was in a much-advantaged position over this Court in making factual findings. But when a finding made is not expressed with clarity or with reasons to justify it, it is impossible for this Court to determine whether there was error and, if there was, whether it impacted upon the sentence or to what degree.

10 The Crown Prosecutor in his closing address to the jury referred to the evidence of the applicant and how it might have supported a finding of the applicant assuming “some significant role as the boss or leader of the group”. But that submission relied mainly upon the fact that it was the applicant who told the group to run and he was the leader off the bridge. He also, according to the Crown, directed the taxi used by the group after the robbery to Bondi and paid the fare. But none of this indicates that he was the leader in any relevant way in the criminal escapade in robbing the three victims.

11 The Crown before this Court sought to justify the finding by reference to the evidence of one of the victims that two persons commenced the fracas and one was wearing a white shirt. It was accepted that the only one of the attacking group that was wearing white was the applicant. But the Judge did not refer to this evidence and I am unwilling to accept that this was the basis for his assertion. It should be noted that if he was drawing a conclusion from the evidence that was to aggravate the culpability of the applicant he should have done so beyond reasonable doubt. A “suggestion” from the evidence cannot amount to a finding beyond reasonable doubt.

12 In my opinion the Judge erred in not explaining what he meant by his statement that the applicant in some undefined way played a leadership role in the group or how that fact impacted, if at all, upon the sentencing of the applicant. If it had no bearing on the sentence as an aggravating factor because the applicant was more culpable than the other co-offenders, then the finding was irrelevant. It also does not sit comfortably with a statement made by the Judge during the sentencing remarks that it was not possible to make any precise distinction between the roles played by the offenders and an acknowledgment that the Crown had not attempted to do so.

13 However this erroneous finding of fact can only warrant this Court’s intervention if the sentences imposed upon the applicant are excessive having regard to the true situation that the applicant’s involvement in the offences was no more serious than that of the other two adult offenders who were convicted at the same time. In my opinion the sentences are not excessive assuming that he was no more culpable than the others and, if anything, the exercise of the Judge’s sentencing discretion was infected with significant error in favour of the applicant.

14 This is another case of a failure by a sentencing judge in the District Court to appreciate, or to apply appropriately, the principle of totality. In R v MMK (2006) 164 A Crim R 481 this Court said:

11 One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.

…………………..
13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.

15 It has been made clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved. In Cahyadi v R (2007) 168 A Crim R 41 it was stated at [27]:

“… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

16 This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative. In R v Weldon and Carberry (2002) 136 A Crim R 55 at [48] Ipp JA stated that there is no inflexible rule that concurrent sentences should be imposed for multiple offences arising out of the one criminal enterprise. There are a number of cases that indicate that the fact that there are a number of victims will generally require an increase in the otherwise appropriate sentence where one victim only was involved: R v Wilson [2005] NSWCCA 219; R v KM [2004] NSWCCA 65.

17 In R v Dunn [2004] NSWCCA 41 Adams J, with whom the other members of the Court agreed, stated:

50 The Crown submitted in this Court that the sentences should have been partially accumulated. I consider that there should have been some accumulation to reflect the fact that the respondent persisted in his violence when Mr Pitt attempted, quite justifiably and lawfully, to restrain him, even extending the blade of the knife to enable him more effectually to injure Mr Pitt. There is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent’s criminality considered as a whole.

18 In KM the following observation was made after referring to the practice adopted in this State since Pearce was decided (my underlining):

55 Nevertheless, whilst it is sometimes difficult, if not artificial, to assess the criminality of an offence in isolation when it is only one of what are, in law, separate offences but inextricably part of the same conduct, the exercise must be undertaken. It may be that in undertaking that exercise, and being anxious to avoid double punishment, a judge may just overlook the need for the sentences as a whole to reflect the seriousness of the offender’s conduct as a whole. In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.

19 In this case the Judge determined that the sentences for the three offences should be served concurrently. This conclusion was based merely upon the fact that the three offences were part of the one course of criminality of short duration. That was an erroneous view to take. Here there were three victims who were separately assaulted and robbed. If there had been one charge of robbery encompassing the three victims, it would have been an aggravating fact that there was more than one victim: R v House [2005] NSWCCA 88. So here the fact that there were three victims made the total criminality of the applicant greater than had there been only one. The sentence for one robbery could not take into account that there was more than one victim when each of the victims was the subject of a separate charge. The only principled way that the Judge could take into account that three persons were robbed by separate threats and acts of violence to each of them was to order some accumulation between the sentences.

20 The applicant was aged 27 at the time of the offending. He had a prior offence for robbery in company committed in 1999 and for which he was sentenced to imprisonment for 5 years with a non-parole period of 18 months. No doubt that very lenient minimum term of imprisonment was to acknowledge his youth and encourage his rehabilitation. It failed to achieve the latter result because twice the applicant’s parole was revoked for failure to comply with conditions and finally he was forced to serve the balance of his sentence in custody. He was released at the expiration of his sentence in November 2003.

21 There was little of relevance in the applicant’s background although he did suffer some misfortunes in the death of close relatives. He was born in New Zealand and arrived in Australia with his family in 1994. He was residing with his mother and stepfather at the time of the offences. He left school at the age of 16 years and since then has been involved in unskilled work or unemployed. He claimed to be intoxicated on the evening of the offences but stated to the officer preparing a pre-sentence report that he had no problem with alcohol or drugs. The officer found that the applicant tended to minimise his involvement in the offences claiming that he was simply protecting the co-offenders.

22 In my opinion the sentences imposed upon the applicant were unduly lenient having regard to the failure of the Judge to partially cumulate the sentences as he ought to have done and in light of the previous offence for which the applicant had served a significant sentence of imprisonment. The applicant showed no remorse. Having regard to the guideline judgment in Henry I find it impossible to see how this Court could impose a lesser sentence than that imposed by the Judge, being 5 years for three robberies and even accepting that the Judge took into account impermissibly that the applicant was a leader of the group. No lesser sentence could possibly be warranted despite the error of the Judge.

23 This then brings me to the question of parity. There were two juveniles. In my opinion having regard to the fact that the applicant was 27 years of age, had a prior record for a similar offence and was actually involved in assaulting one of the victims, there is no need to have any regard to their sentences. The applicant could not possibly have a justified sense of grievance from any sentence imposed upon them.

24 The co-offender Faitea was sentenced to concurrent terms of 3 years with a non-parole period of 18 months. The Judge found him to have been “swept up with the others” and apparently accepted that he was easily led. Faitea was aged 21 and had little criminal record but was in breach of a bond for assault police and hinder police at the time of the offending. He had generally good character and his prospects of rehabilitation were found to be better than the applicant. The Judge treated him as having no prior record for violence, even though he had been convicted of assault police. He was to serve his first gaol sentence. His father intended to remove him to Canberra after his release to aid in his rehabilitation.

25 The same error arose here in that the Judge failed to partly accumulate the sentences as representing the robbery of three victims. In my opinion the sentences are manifestly inadequate considering that the offender was on a bond and that there was no discount for a plea of guilty. Having regard to the fact that there were very significant differences between the applicant and Faitea, I am not persuaded that the Court should intervene to reduce the head sentence of the applicant. There is a significant difference in their respective ages and the fact that the applicant had served a gaol sentence for a similar offence. The Judge was entitled to find that the role of Faitea was limited.

26 The Judge found that there were special circumstances in Faitea’s case and reduced the non-parole period accordingly such that it was half of the head sentence. The applicant complains that no such finding was made in his case so that the applicant is to serve three quarters of the head sentence and that this with the increased head sentence resulted in a justifiable sense of grievance.

27 The issue of disparity arising in respect of non-parole periods was considered in Tatana v R [2006] NSWCCA 398. It was held there that different findings made between co-offenders as to special circumstances does not itself give rise to a justifiable sense of grievance. The disparity is a result of the application of the law in determining the non-parole period in each case. However in Tatana the result of different findings by different judges of special circumstances between co-offenders gave rise to a result that was so anomalous that the Court was required to interfere. But no such anomaly arises in the present case. There was no error in the Judge declining to find special circumstances in the case of the applicant and no justifiable sense of grievance arises from the fact that Faitea’s non-parole period was reduced by such a finding.

28 In the case of the co-offender Fauatea he was sentenced to the same sentence as the applicant. Fauatea was aged 22 years and was on bail for two offences of robbery committed three days before these offences. That was a significant matter of aggravation but he had otherwise minimal criminal record. He was in a stable relationship and was about to become a father at the date of sentence.

29 For the earlier offence of robbery with a similar matter taken into account on a Form 1 Fauatea had been sentenced to imprisonment for 3 years with a non-parole period of 18 months. This was a sentence imposed after a plea. Incidentally it was the same sentence as the Judge imposed upon Faitea for three offences of robbery in company after trial. That result should itself have informed the Judge that the sentences he imposed on Faitea were inadequate.

30 Clearly totality was a matter of significance in sentencing Fauatea in light of the fact that the earlier offences were committed three days before the offences for which he was to be sentenced. The judge imposed a sentence for the three offences before him that was inflated in order to encompass the sentence previously imposed upon Fauatea. With respect, this was an inappropriate way of dealing with the issue of totality. It should have been addressed by a degree of accumulation between the sentences for the earlier offence and those imposed for the offences before the Judge. The fact that Fauatea was on bail for the earlier offences however would have limited the degree to which the sentences for the two groups of offences could have been made concurrent.

31 As a result of these three offences of robbery Fauatea received an increase in his total sentence of about 22 months and an increase in the non-parole period of about 2 years and 3 months. By sentencing in the way he did, the Judge avoided making any finding of whether there were special circumstances in his case, even though the judge previously sentencing Fauatea, thought there were special circumstances. In my opinion the sentences imposed upon Fauatea were also inadequate in light of the totality of his criminality.

32 The sentencing of the applicant and his co-offenders involved an error of principle but it resulted in sentences that were unduly lenient. The applicant should appreciate that he had a very favourable outcome and I am not satisfied that this Court should exercise its discretion to further reduce the sentences imposed upon him. There were good reasons why his sentences should be longer than those imposed upon his co-offenders and I am not satisfied that whatever disparity there is should be addressed by this Court imposing sentences which would be manifestly inadequate to a very significant degree.

33 I propose that the application for leave be granted but the appeal be dismissed.

34 HARRISON J: I agree with Howie J.

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28/08/2007 - Edit error - Paragraph(s) 6