Apineru & Ors v The Queen [2018] VSCA 206

1 Each applicant pleaded guilty in the County Court on 5 February 2018 to recklessly causing serious injury[1] to Kane Dulieu (charge 1), and to three charges of intentionally causing injury[2] respectively to Travis Silvester, Justin Stephens and Ryan Vears (charges 2, 3 and 4).

2 Following a plea hearing, on 12 February 2018 the judge sentenced the applicant Maele Maele, now aged 28 years,[3] to a total effective sentence of four years and six months' imprisonment, with a non-parole period of two years and nine months; the applicant Andrew Apineru, now aged 26 years,[4] to a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years and three months; and the applicant Leti Maele, now aged 20 years,[5] to a total effective sentence of two years and nine months' imprisonment, with a non-parole period of one year and three months. A co-offender, Apisai Maele,[6] was also sentenced to a total effective sentence of two years and nine months' imprisonment, with a non-parole period of one year and three months.

3 Of the four offenders, Apisai Maele is the only one who has not sought leave to appeal against the sentence imposed upon him.

4 Maele Maele seeks leave to appeal against sentence on the following grounds:

1. The individual sentences, orders for cumulation and total effective sentence are manifestly excessive in all the circumstances.

Particulars:

(a) The sentence on charge 1 is manifestly excessive in circumstances where the following features are not present:

(i) Catastrophic or life-threatening injuries;

(ii) Use of weapons; and

(iii) Prior convictions for violence.

(b) The sentences of imprisonment for charges 2 - 4 would not have been imposed but for the term of imprisonment on charge 1.

1. The sentencing judge gave too much weight to the fact that at the time of the offending, the applicant was an accredited security guard.
2. There is an unjustified disparity between the sentences imposed on the Applicant and those imposed on his co-offender, Andrew Apineru.

5 Andrew Apineru also seeks leave to appeal against sentence. The grounds on which he relies are as follows:

1. The learned sentencing Judge erred in finding that the Accused must have known that excessive alcohol intake was not advisable having regard to his ABI. This finding was not reasonably open on the evidence before His Honour and / or the finding was made without affording the Accused procedural fairness.
2. The sentence imposed on charges 1 - 4, the orders for cumulation on charges 3 & 4, and the TES, are manifestly excessive, having particular regard to the fact:

(a) No weapon was used;

(b) The injury concerning charge 1 was at the low or low to mid-range for a serious injury offence;

(c) The injury concerning charges 3 & 4 were low range for an injury offence;

(d) No permanent injury was caused;

(e) The applicant has no relevant priors;

(f) The presence of a number of mitigating features personal to the Applicant; and

(g) Current sentencing practices.

6 Leti Maele seeks leave to appeal against sentence on two grounds:[7]

1. The sentencing discretion miscarried in that the sentencing judge noted that the Applicant would be a good candidate for the youth unit in Port Phillip Prison and that there was no doubt that he would get parole.
2. In all the circumstances:

(a) the total effective sentence; and

(b) the non-parole period

are manifestly excessive.

7 For the reasons that follow, in each case we would refuse leave to appeal against sentence.

8 It is necessary to summarise the offending and its aftermath.

9 By way of background, the four offenders have family or social connections. Maele Maele is the uncle of Apisai Maele, and the cousin of Leti Maele. They befriended Andrew Apineru though the Seventh Day Adventist Church. The two applicants Maele have no prior or subsequent convictions, or any outstanding charges. Andrew Apineru has one prior court appearance for theft and an irrelevant outstanding charge.

10 Kane Dulieu (charge 1), Justin Stephens (charge 3) and Ryan Vears (charge 4) knew each other, but did know the three applicants or their co-offender. Travis Silvester (charge 2) had, however, been socialising with the co-offenders the night and morning immediately preceding the offending.

11 The judge summarised the offending in his reasons for sentence as follows:

On 18 November 2016, Kane Dulieu was celebrating his 24th birthday at the Irish Bar at Knox Ozone in Wantirna South with friends including Justin Stephens and Ryan Vears.

Dulieu, Stephens and Vears decided to leave the premises at approximately 1.30 am and walked through a carpark towards a taxi rank about 30 metres away.

In the carpark they were observed by an off duty crowd controller from the Lou Lou Bar which was also located in the Knox Ozone area. The crowd controller wrongly believed that Dulieu and a friend had damaged the vehicle owned by the proprietor of the Lou Lou Bar. No such damage had occurred at all.

The four [offenders] who had all been drinking in the Lou Lou Bar and were associates of the owner were also in the area of the carpark. They ran towards Dulieu and his friend Chris Wilson who denied damaging the car in anyway. Dulieu walked to the taxi rank with Stephens and Travis Sylvester who had been in the Lou Lou Bar and was trying to calm the situation down.

At the area of the taxi rank Maele Maele approached Stephens and without warning or the slightest provocation punched him in the head. Stephens fell to the ground unconscious [charge 3 - intentionally causing injury]. Shortly after regaining consciousness he was then punched and kicked repeatedly by the other three [offenders].

Dulieu was then punched in the head from behind by Apineru. He too fell to the ground unconscious and struck his head on the concrete [charge 1 - recklessly causing serious injury]. It was a coward's punch. All four [offenders] then surrounded him and punched and kicked him forcefully as he lay motionless on the footpath.

Sylvester attempted to protect Dulieu and he too was attacked by the four [offenders] with forceful punches and kicks [charge 2 - intentionally causing injury]. A female friend attempted to protect him from the attack. Vears approached the scene yelling as he approached his unconscious friend Dulieu. He too was then attacked by the [offenders] with forceful punches and kicks [charge 4 - intentionally causing injury].

12 The four offenders then fled, whilst bystanders and security staff attended to the seriously injured Dulieu, who was convulsing and choking on blood.

13 On 25 November 2016 all four co-offenders were placed under arrest and interviewed by police.

14 Maele Maele told police that he attended at the Lou Lou Bar with the co-offenders. They had a few drinks until one of the security guards told him they were having trouble out in the car park. He admitted punching 'a guy', and stated that he then just blacked out. Maele Maele was shown still images from CCTV footage capturing the relevant incident. He identified himself, and also identified Andrew Apineru as the person who struck Kane Dulieu. Maele Maele stated that he tried to kick the guy on the ground, but recalled that he missed kicking his head. He admitted that the victim was unconscious, and admitted that he put the person in danger of serious injury. Alcohol, he said, contributed to his actions.

15 The applicant Apineru told police that he remembered having a few beers, but after that he could not remember anything. He woke up the next morning and someone told him what had happened. Apineru said that he sort of recalled going to Lou Lou Bar with his wife and the co-offenders. He stated that his wife was present and saw what happened. She told him that he had assaulted someone.

16 Leti Maele identified himself in still images taken from the CCTV footage. He stated that he went to Lou Lou Bar with the co-offenders. Although he told police that could not remember much, he admitted that he jumped in and started punching.

17 Kane Dulieu, the victim in relation to the first charge, was treated by Ambulance members and transported by ambulance to the Royal Melbourne Hospital where he was admitted to the Intensive Care Unit at 3.30 am on 19 November 2016. A breathing tube had been inserted by ambulance members as the victim was in a 'decreased conscious state'. He had cuts to the left side of his face. Mr Dulieu was placed in an induced coma as a result of bleeding on his brain. Blood tests, x-rays of chest and pelvis and CT scans of head and neck were performed. He was diagnosed with having suffered haemorrhagic contusions in the right temporal lobe of the brain, fractures of the right zygomatic arch and left mandible, and bruising and cuts to the left side of face. Mr Dulieu was initially sent to the intensive care unit for a brief period of monitoring and then observed on the trauma ward, where the bruising within the brain improved. The cut to his head was washed and sutured, and his cheekbone was surgically repaired (the broken jaw not requiring surgery).

18 Less than an hour after the attack, Travis Silvester went to the Angliss Hospital. His eye and left arm were bruised, and he had a headache. Significantly, three of his teeth were damaged, two of them having been snapped. Silvester attended a dental surgeon on 23 November 2016, who observed facial bruising, a swollen and cut upper lip, and fractured right front teeth (the nerve of one of the teeth being partially exposed). The teeth were then filled.

19 Justin Stephens sustained soreness to his body where he was punched and kicked. The soreness was to the right hip and was a continuous ache, noticeable whilst walking, and continued through for the next week. Stephens was not sure if he was knocked unconscious in the attack on him.

20 Ryan Veers received a bruise to his head, an abrasion on his bicep and his right index finger was jarred. His neck was sore and he felt groggy. Veers was unsure whether he lost consciousness at the time of the attack.

21 The sentence imposed on the applicant Maele Maele is summarised in the following table:

6 years' imprisonment with 4 year non-parole period

22 The applicant Maele Maele was aged 26 at the time of offending. His counsel informed the sentencing judge that he was born in Auckland, New Zealand, and is the fourth of five siblings. His father passed away when the applicant was aged 11 years. He completed schooling in New Zealand and worked in the security industry before moving to Melbourne approximately six years ago, where he gained accreditation and worked as a security guard until December 2016. The applicant then took up tree-lopping and now has his own business. He lives with his mother, his partner and his nephew, Apisai Maele.

23 Conceding that there was no provocation for the applicant's violent attacks, counsel for Maele Maele in summary advanced the following submissions:

• the applicant is of previous good character, having no prior convictions or any subsequent offending;

• the applicant has strong prospects for rehabilitation;

• the plea of guilty was entered at an early stage and there is remorse;

• the risk of deportation would be burdensome for the applicant; and

• the applicant's consequential thinking was impaired by alcohol and adrenaline.

24 Ultimately, it was submitted that imprisonment together with a community correction order was within range.

25 In this Court, counsel for the applicant submitted in support of the first ground that, although Mr Dulieu's injuries are serious, they were neither life threatening, nor productive of substantial long-term impairment. In those circumstances, the sentence on charge 1 is manifestly excessive. Moreover, the cumulation ordered on the sentences on charges 2, 3 and 4 is also excessive. With respect to the second ground, counsel for the applicant argued that the mere fact that the applicant had accreditation as a security guard should not be seen to aggravate his offending. At the relevant time, the applicant had been socialising and drinking, not engaging in employment as a crowd controller or security guard.

27 As the judge observed, the instant case involved 'a savage and cowardly attack by four big powerful men without any justification whatsoever'. His Honour also said:

The punches and kicks delivered by the [offenders] were of significant intensity on their utterly defenceless victims. I have no hesitation in describing these appalling crimes as serious examples of serious offences of violence. These crimes were fuelled by alcohol and took place in public outside licenced premises. The victims bear no responsibility whatsoever for the violence inflicted upon them by the four [offenders] before this court.

29 A number of features informed the applicant's degree of criminality. Thus, with respect to the first charge, he acted in concert with his co-offenders to inflict the serious injuries which Mr Dulieu sustained, their vicious attack continuing whilst their hapless victim lay helpless and motionless on the ground. It resulted in their victim suffering brain injuries, as well as severe facial injuries. The applicant and his co-offenders may not have used an implement, but the fists and feet of strong young men are themselves significant weapons, capable of inflicting severe injury. Indeed, the continuing attack on Mr Dulieu, who was disabled, was reprehensible, and made all the more so because of the nature of the applicant's occupation[8] (albeit that he was not carrying out that occupation at the time). Public violence, such as that perpetrated by the applicants against innocent victims, is of grave concern, and merited stern punishment and strong denunciation. Additionally, general deterrence was an important factor which needed to be given significant weight in the exercise of the sentencing discretion.

30 Further, although the injuries suffered by Mr Dulieu may not have been 'catastrophic', as his victim impact statement made clear, beyond being in a coma and suffering fractured facial bones, he was off work for five weeks and he has a 'big scar' over his eyebrow which, every time he looks in the mirror, is a reminder of what happened to him.

31 In these circumstances, it cannot realistically be contended that the sentence imposed is wholly outside the range of those open in the proper exercise of discretion.[9]

32 Finally, we consider that there is nothing in ground 3, which asserts that there is an unjustified disparity in the sentence passed on Maele Maele compared to that imposed on Apineru. The ideal of equal justice requires identical outcomes in cases that are relevantly identical, but different outcomes in cases that are different in relevant respects.[10] Appellate intervention is impermissible where disparity between sentences imposed on co-offenders is justified by differences in age, background, criminal history, general character or the part each has played in the relevant criminal conduct or enterprise.[11] It must be acknowledged that, by punching Mr Stephens to the head, it was Maele Maele who instigated the episode of extreme violence in which he and his co-offenders participated in concert. It was in this milieu of violence, initiated by Maele Maele, that Apineru struck Mr Dulieu. In our opinion, Maele Maele's greater role in precipitating the violence, by launching the initial attack, justified a more severe sentence being imposed upon him than upon his co-offenders.

33 Andrew Apineru was sentenced in accordance with the following table:

5 years' imprisonment with 3 years and 3 months non-parole period

34 The applicant Apineru, aged 25 years at the time of offending, was born in Auckland, New Zealand, of Samoan parents. He migrated to Australia in 2013 and is a permanent resident. As at the date of the plea hearing, Apineru was self-employed having started his own business in approximately December 2017. He resided in rental premises in Melton with his mother and father and youngest brother (aged 16 years), and was the breadwinner for his family. Apineru is in a relationship, and has a child who was born in early January 2018. Since the offending he has re-engaged with his church and attends regularly.

35 In summary, counsel for the applicant Apineru made the following submissions to the sentencing judge:

• alcohol was a contributing factor to the offending;

• Christian values underpin the remorse the applicant now displays;

• the applicant sustained a head injury, including an acquired brain injury, in similar circumstances in March 2013, and therefore empathises with Mr Dulieu;

• alcohol consumption, coupled with his acquired brain injury, contributed to the applicant's disinhibited judgment and impulsive reactions; [12]

• the objective seriousness of charge 1 was at the lower end;

• the offending was spontaneous and was short in duration;

• he is a permanent resident of Australia, and faces deportation, which will make imprisonment more burdensome for him;

• the applicant entered an early plea with utilitarian benefit;

• he has relatively good prospects of rehabilitation; and

• sentencing principles could be satisfied by a sentence of imprisonment coupled with a community correction order ('CCO').

36 The first ground asserts that the sentencing judge erred in finding that the applicant must have known that excessive alcohol intake was not advisable having regard to his acquired brain injury. It was submitted that this finding was not reasonably open on the evidence, and that the finding was made without affording the applicant procedural fairness.

37 In his reasons for sentence, the judge observed:

In March 2013 you were assaulted in Auckland and suffered a serious head injury that required neurosurgery. You now suffer from an acquired brain injury and I have received in evidence a neuropsychological report of Mr Martin Jackson setting out the effects that injury has had on your cognition.

I accept that your impulse control and monitoring are impaired by the injury, and there is a connection between this and your offending on the night in question. However your offending was also caused by your high level of intoxication and you must have known that excessive alcohol intake was not advisable having regard to your injury.

It is also clear from the report of Mr Jackson that you have a history of binge drinking and this too has had an adverse impact on your impulse control. ...

38 In our view, the judge's observations were consistent with the opinions of Mr Martin Jackson, consultant clinical neuropsychologist, who, in a report commissioned by the applicant's solicitors, said:

It should be noted that persons with a traumatic brain injury are known to be more sensitive to the effects of alcohol. Therefore, it is not surprising that Mr Apineru experiences blackouts on occasions when he drinks on the weekends (binge drinking), given that he clearly has had a traumatic brain injury in the past.

It is also noted that when a person with a traumatic brain injury has alcohol, then it is likely to exacerbate or intensify the symptoms that they have. Given that he has impairments of impulse control and monitoring, it is likely that these impairments would be amplified when he is intoxicated.

Mr Apineru knows that there have been changes in his memory and his behaviour since the traumatic brain injury (awareness), although the exact level of insight is uncertain. He really needs to reduce his consumption of alcohol drastically, given the effect that alcohol has on his traumatic brain injury symptoms. ...

39 Given the contents of Mr Jackson's report, the judge's observations were well-justified. And given that the report was tendered by the applicant's counsel, the suggestion that there was a denial of procedural fairness is, in our view, without substance.

40 So far as the contention that the individual sentences, orders for cumulation and total effective sentence, are manifestly excessive is concerned, we need not repeat the observations that we have already made when dealing with similar contentions advanced by the applicant Maele Maele. Apineru struck Mr Dulieu from behind with what the judge aptly called a 'coward's punch'. All four applicants then surrounded him and punched and kicked him forcefully as he lay motionless on the footpath. It was a wholly gratuitous and utterly craven attack. Three other men were also assaulted.

41 In those circumstances, the assertion that the sentence imposed is manifestly excessive is unsustainable.

42 The sentence imposed on Leti Maele is reflected in the following table:

4 years' imprisonment with 2 year non-parole period

43 Leti Maele is the youngest of the three applicants, being aged 19 years at the time of the offending. He was born in Samoa and moved to New Zealand when he was nine years old, where he lived with his aunt. The applicant lacked a significant male role model in his earlier years, having never met his father. He came to Australia when he was 15 years of age and, at the time of the plea, resided with his aunt, uncle and four cousins. The applicant worked for his uncle, who owned a tree-lopping business.

44 In summary, the applicant's counsel made the following submissions in the course of the plea hearing:

• the applicant is entitled to a utilitarian benefit from his plea of guilty;

• he continues to attend church and is embarrassed by the offending;

• in relation to victims Vears and Stephens, the injuries are at the lowest end of the scale for intentionally causing injury;

• as the applicant is a New Zealand citizen, he will face deportation, which will be more burdensome and isolating for him as his mother is in Samoa, he has never met his father, and his remaining family all reside in Australia;

• as the applicant is a young offender[13] he should be assessed by Youth Justice; and

• given his youth, general deterrence ought be given less weight in the sentencing matrix, and confinement in an adult prison should thus be avoided.

Whilst I accept that rehabilitation is an important consideration in your case, and that your prospects in that regard, quite apart from your age are reasonable, in my opinion, the seriousness of your offending means that general deterrence and specific deterrence are prominent sentencing considerations in your case. I do not accept that the purposes for which this sentence is to be imposed would be met by the imposition of either detention in a youth justice centre or the imposition of a Community Correction Order.

46 As we have noted, grounds 1 and 2 were abandoned.[14] With respect to the third ground of appeal, although the judge remarked in the course of the plea hearing that the applicant would be a 'good candidate' for the youth unit at Port Phillip Prison, and that he would 'get parole, there would be no doubt about that, given his age and his prospects for rehabilitation', in our view these remarks do not amount to findings for the purposes of sentencing. Indeed, as we have observed, the judge's essential reason for imposing a sentence of imprisonment was expressed in his reasons for sentence to be that he did not accept that the purposes for which sentence was to be imposed on the applicant would be met by the imposition of either detention in a youth justice centre or the imposition of a CCO. Ground 3 therefore cannot be upheld.

47 Finally, despite his youth and other factors urged in mitigation, we are not persuaded that the sentence imposed on the applicant was not open in the sound exercise of discretion. To that extent, we need not repeat our observations concerning the seriousness of the offending in which all three applicants were enthusiastic participants.

48 None of the grounds advanced by any of the applicants is reasonably arguable. Moreover, in our opinion, in the case of each of the applicants, there is no prospect that the Court would impose a less severe sentence than the sentence first imposed; or would, despite any discrete error being established, reduce the total effective sentence.[15]

49 Each application for leave to appeal against sentence must be refused.

[1] Crimes Act 1958, s 17. The maximum penalty is 15 years' imprisonment.

[2] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[3] His date of birth is 16 December 1989. He was aged 26 years at the time of offending.

[4] His date of birth is 2 September 1991. He was aged 25 years at the time of offending.

[5] His date of birth is 13 November 1997. He was aged 19 years at the time of offending.

[6] His date of birth is 14 March 1997. He was aged 19 years at the time of offending.

[7] The following two grounds were abandoned upon the hearing of the application in this Court:

1. The sentencing judge erred in declining to make a youth justice centre order because of the judge's finding that the Applicant was 'very mature' for his age without turning his Honours mind to the other factors in s 32(1)(b) of the Sentencing Act 1991.

2. The sentencing discretion miscarried in that the sentencing judge found that the applicant was 'very mature' for his age without receiving a pre-sentence report.

[8] R v Taputoro [2007] QCA 29 (Keane JA).

[9] For example, see West v The Queen [2014] VSCA 36; DPP v Russell [2014] VSCA 308; (2014) 44 VR 471.

[10] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65]. See also Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472-3 [28] ('Green').

[11] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609; Green, 474-5 [31].

[12] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins') was relied upon.

[13] By virtue of s 3(1) of the Sentencing Act 1991, a young offender is 'an offender who at the time of being sentenced is under the age of 21 years'.

[14] See footnote 7 above.

[15] Criminal Procedure Act 2009, s 280(1).