Faleafga v R

Court of Criminal Appeal (NSW)|2016-08-02|Before: Hoeben CJ, Button J, Adams J

Judgment

HOEBEN CJ at CL: I agree with N Adams J.
BUTTON J: I agree with N Adams J.
N ADAMS J: Keresipi Falaefga ("the applicant") seeks leave to appeal against the sentence imposed upon him by Garling ADCJ on 2 July 2015 in relation to one count of armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years' imprisonment.
The offence was committed on 11 June 2014. The applicant was arrested on 13 October 2014 and granted bail on 8 December 2014. He pleaded guilty at Burwood Local Court on 11 March 2015. He was sentenced in the District Court at Sydney on 2 July 2015 to a term of imprisonment of four years to commence on 6 May 2015 and expire on 5 May 2019 with a non-parole period of two years and three months, which is due to expire on 5 August 2017.

The applicant's subjective case

The applicant had just turned 19 years of age at the time of the commission of the offence. His mother is Indigenous and his father is Samoan. His parents separated when he was young. His childhood was spent in a violent and disruptive household. He witnessed domestic violence and was subjected to physical abuse at the hands of his father. His mother commenced a series of abusive relationships after she separated from his father. The applicant changed schools frequently, attending several primary schools in different parts of New South Wales. He found it difficult to make friends and was bullied at school. He witnessed his father abuse alcohol and cannabis and gave evidence that it was after watching his father smoking cannabis that he later tried it himself because he wanted to know what it felt like.
Despite his disruptive childhood, the applicant managed to complete Year 12 successfully. He gained his Higher School Certificate and commenced studying communications at the University of Technology. He was unable to apply himself at university and discontinued his studies. He then was unemployed for a time and seeking casual employment. During this period, the applicant associated with friends who were abusing drugs. He gave evidence on sentence that he then went through what he described as a "dark" time in his life. The applicant's drug use increased, ultimately leading to the commission of this offence.
The applicant's criminal history discloses one instance of offending prior to the commission of the subject offence, being on 15 November 2013 when he came to the attention of police for driving on his "L" plates unaccompanied by a licensed driver, failing to display his "L" plates and taking and driving a conveyance. These three matters came before Bankstown Local Court on 18 December 2013. The applicant was dealt with in his absence and fined in relation to the two traffic offences, but a warrant issued in relation to the take and drive conveyance offence. He was subsequently dealt with for that offence on 12 February 2014 at which time he was placed on a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of nine months. Those are the only matters on the applicant's criminal history. He was still subject to the bond under s 9 at the time of committing the present offence.
The applicant gave evidence at the proceedings on sentence that, after the commission of the subject offence, he moved from his father's residence at Bankstown to live with his mother in Dubbo. Shortly after arriving in Dubbo, he told his mother about the offence. He and his mother then went to the Aboriginal Legal Service to seek legal advice as to what he should do. The applicant's evidence on sentence was that he was advised not to hand himself in to the police but, rather, to attempt to rehabilitate himself. (The sentencing judge made no finding concerning this evidence; there was neither agreement nor dispute about this issue at the proceedings on sentence).
The applicant then proceeded to take steps to turn his life around. He saw a general practitioner who referred him to a psychologist, Tim Manning. He attended to see Mr Manning on a number of occasions as well as a drug and alcohol counsellor and a counsellor at Nguumambiny Indigenous Corporation.
On 13 October 2014, during this period of rehabilitation, the applicant was arrested after his DNA was linked to the offence. Some 57 days later he was granted Supreme Court bail on strict conditions, which included daily reporting and a curfew. The applicant complied with his bail conditions for the seven-month period before he was sentenced.
When the applicant was released on bail he continued his counselling with the Nguumambiny Indigenous Corporation. He also continued to see Mr Manning and the Western New South Wales Local Health Service. Although an Indigenous employment agency in Dubbo offered some work in horticulture, he instead took a position as a kitchen hand at a Thai restaurant in Dubbo. He moved back to Sydney prior to his sentencing, during which time he was employed in a clothing shop.
The applicant wrote a letter to the victim of the present offence expressing his remorse. The letter was tendered at sentence. It reads: "To the Victim I'm not really sure where to start. I wanted to say all of this to you in person, but I'm not sure if that will happen. I know when you went to work that night, you had no idea of what was about to happen. When I saw your reaction to me breaking in the shop, I could see and sense how frightened and shocked you were. I couldn't ever know how you felt after that night. You didn't deserve to be put through that experience. You should not have had to put up with this. Just because I was doing it hard. I'm not aware of how difficult your life may be. But I certainly didn't make it easier, and it shatters me to think how this has affected you and your family. I know little to nothing about you. But I know you are a young, hard working man, who was just trying to work to better yourself and your family. You've done nothing to deserve this and for this I am truly sorry, I really am. I do feel guilty and regret this entire situation. Please understand that I don't expect you to forgive me right away, or ever for that matter. Quite frankly, I don't deserve your forgiveness. I still think about that night and I still have the vivid image of your face locked in my head. I think that's the part I feel most guilty about, is the fear that I put you through. The word sorry itself isn't enough to show how much I regret putting you through this. I'm sorry for all of this, I wish you nothing but the best in life. I really do. Keresipi Faleafaga (PJ)"
The applicant also gave evidence at sentence that when he was writing the letter he tried to imagine how the victim must have felt. In cross-examination he stated that he had hoped to see the victim at court. It was after realising the victim would not be attending court that he wrote the letter instead.
There was a great deal of material before the sentencing judge setting out the applicant's subjective case.
A psychological report under the hand of Caroline Hare detailed the applicant's background and outlined a history of family violence and dysfunction in childhood. Ms Hare observed that the applicant was exposed to "multiple vulnerability factors" during childhood, including parental domestic violence, development of insecure attachments, numerous relocations and changes in schools, bullying at school and anti-social role modelling. The applicant then struggled with the lack of structure and consistency afforded to him at university, ultimately leading to the abandonment of his studies. It was against a background of unemployment, substance abuse and association with anti-social peers that the applicant committed the present offence.
Letters were provided by the applicant's treating psychologist, Tim Manning, who had counselled him for adjustment disorder and depression. Mr Manning confirmed that the applicant attended on his offices and "participated well" in sessions with him.
A report from Jai Forrester, the applicant's drug and alcohol counsellor at Western New South Wales Local Health Service, confirmed that the applicant had completed an initial intake on 3 February 2015 and a comprehensive clinical assessment on 12 February 2015. After attending several therapy sessions, the applicant disengaged from treatment and was discharged on 30 April 2015.
The applicant's counsellor at Nguumambiny Indigenous Corporation, Lynn Field, provided a letter stating that the applicant had been a client of that service since June 2014. Ms Field wrote that the applicant "…presented as a forthright direct man who was eager to use his skills. He displayed a sense of right and wrong and was happy to follow direction when needed." Further, she said that the applicant had experienced "an extraordinary level of childhood trauma" and thus developed a "pseudo maturity".
There was also a letter from Paul Hausia, the Indigenous Program Manager at Sureway Employment and Training in Dubbo. Mr Hausia stated that: "[The applicant] has had some challenges in his young life but I feel since joining our program [he] has made [an] enormous progress in making choices that he knows will enable him to be an upstanding citizen but most importantly a role model for his family. As the Indigenous Program Manager [I] can see changes that he has made in becoming a mature young indigenous man and I will welcome him back in the program and happy to continue in assisting him to achieve his goals."
Consistent with this the applicant gave the following evidence at sentence in examination-in-chief: "Q. What kind of role model do you want to be to young Koori kids? A. I want to be the type of role model where they look at me and they say, I want to be like him, you know. I want to have that mentality, I want to be able to think like him and have his charisma. That's the type of role model I'd like to be."
A letter was tendered at the proceedings on sentence from Meredith Russell, the Learning and Support teacher at Punchbowl Boys High School where the applicant was a former student. She wrote that she was aware of the current charge against him and concluded: "[The applicant] has always been a polite and considerate person in his dealings with teachers at the school. He worked hard and consistently despite being faced with many distractions from other students and completed his HSC. I was his career adviser for that period. I enjoyed his calm and steadying influence on many of his peers. He took leadership with younger students particularly in the sporting arena showed excellent leadership qualities. He was a great role model. … Despite any possible mistakes that [he] has made since leaving school, I certainly commend him to you as someone of good character who has great potential to make a valuable contribution to the community."
A detailed letter by the applicant's mother, Susan Gibbs Kelly, was tendered in the proceedings on sentence. She also gave evidence. In her letter she provided details concerning the applicant's troubled childhood. She said that the applicant's father was a perpetrator of verbal and physical abuse towards her. After separating from the applicant's father, Ms Kelly began relationships with other abusive men. She and her children experienced periods of homelessness and stays in refuges. At one point, she was diagnosed with stage-4 bowel cancer. The applicant became her primary carer when he was in Year 6. Ms Kelly later married a man, Ronald Kelly, who was violent, verbally abusive and had serious mental health problems. One night, he made a cross above the heads of Ms Kelly and her children and said he was cursing them to the devil. Ms Kelly was awarded victims' compensation as a result of the domestic violence perpetrated against her by Ronald Kelly.
Based on the above factors, it was put to the sentencing judge on behalf of the applicant that there were exceptional circumstances in the applicant's case such that a non-custodial sentence could be imposed: R v Henry (1999) 46 NSWLR 346 at [113].

The reasons

The sentencing judge described the applicant as a "very impressive young man". His Honour went on to state, "He is articulate. He presented his version very well to the court, and I can only say that this young man, if he applies his mind to it, has a very good future". His Honour said that he nonetheless had to sentence him "for what occurred".
His Honour noted the evidence of Ms Hare, psychologist, that the applicant experienced a challenging and disruptive childhood during which he was exposed to multiple vulnerability factors. Despite this, he was able to complete his secondary education and avoid coming to the attention of the authorities during his adolescence. His Honour noted the early plea and allowed for a discount of 25%. He also noted the applicant's genuine remorse.
After outlining the subjective factors in the applicant's case, the sentencing judge went on to address the seriousness of the offence. His Honour acknowledged the gravity of the offence and the fact that the victim would have been terrified. His Honour noted that, if things had gone wrong, serious injury could have resulted. His Honour held that the offence fell "well and truly" within the guidelines set out in Henry. His Honour acknowledged that the applicant was a young offender with little or no criminal history; there was a weapon which was capable of killing or inflicting serious injury; there was some degree of planning; there was a limited actual violence but a real threat thereof; the victim was in a vulnerable position being a shopkeeper; there was a relatively small amount taken; and there was a plea of guilty. His Honour noted that, consistent with the Henry guideline, "…a range of sentencing between four and five years head sentence was appropriate for these type of matters but one had to take into account all the surrounding circumstances."
His Honour addressed the submission put on behalf of the applicant that this case was one in which exceptional circumstances existed such that a sentence of full-time imprisonment was not warranted. His Honour noted that the exceptional circumstances were said to be the applicant's attempts at rehabilitation, his youth, his plea of guilty and remorse. His Honour expressed his sympathy for the applicant, but concluded he could not find that this matter fell within the class of most exceptional or exceptional circumstances such that an Intensive Correction Order ("ICO") would be appropriate. This was because such a sentence would require a sentence of imprisonment for two years or less (see s 7 of the Crimes (Sentencing Procedure) Act 1999) and he could not do that "in light of what happened".
His Honour did find special circumstances within the meaning of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999, being the fact that the applicant had never been in gaol, was making every effort to rehabilitate himself and needed to be encouraged to continue those efforts when he leaves custody. As a result his Honour significantly varied the statutory ratio as between the non-parole period and head sentence.

Grounds of appeal

The applicant relies upon two grounds of appeal that were dealt with together in submissions. It is similarly convenient to deal with them together in this judgment. The grounds are as follows: 1. His Honour erred in failing to take into account relevant mitigating factors, including his deprived background and his rehabilitation, when imposing the head sentence (Ground 1). 2. The sentence is manifestly excessive (Ground 2).

The applicant's submissions

On behalf of the applicant it was submitted that the sentencing judge fell into House error, as identified in House v The King (1936) 55 CLR 499, in that his Honour failed to take into account relevant mitigating factors, in particular the applicant's remorse and rehabilitation, when imposing the head sentence, and only took these matters into account when fixing the non-parole period. The applicant accepted that his Honour summarised the details of the applicant's family background and subjective case and considered them in the context of whether this was such an exceptional case that it justified the imposition of a custodial sentence to be served other than by full-time custody. The complaint made is that his Honour then failed to take those matters into account when assessing the applicant's case as against the Henry guideline.
It was submitted on behalf of the applicant that the starting point for the four-year sentence of imprisonment imposed, prior to a 25% discount for the early guilty plea, was five years and four months. This equates to the very top of the range indicated in Henry, which allows for a 10% discount for a late plea of guilty. It was contended on behalf of the applicant that, when considering the application of the Henry guideline to the applicant's case, the sentencing judge failed to acknowledge that the guideline envisages a late plea of guilty attracting a discount of only 10%. Not only was it contended that the sentencing judge failed to acknowledge the full extent of the discount for the applicant's early plea, there was also no allowance or inadequate allowance made for the applicant's remorse, which his Honour accepted was genuine. It was submitted that the applicant was entitled to further reduction in sentence because of this factor: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [162].
It was further submitted that there were numerous mitigating factors which justified a sentence below the range indicated in Henry, such as the applicant's difficult background. This was relevant to his moral culpability. The applicant relied upon the recent decision of this Court in Ingrey v R [2016] NSWCCA 31, where Hoeben CJ at CL (with whom Adams and Fullerton JJ agreed) noted the authorities that provide guidance as to how social disadvantage is to be taken into account on sentence: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43]-[45]; Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [43] and [54].

The respondent's submissions

The respondent noted that, had the sentencing judge taken the applicant's efforts at rehabilitation into account both when reducing the head sentence and also as a factor to find special circumstances to reduce the non-parole period, then his Honour would have erroneously double-counted this factor: R v Fidow [2004] NSWCCA 172.
The respondent emphasised the objective seriousness of the offence and the fact that the applicant was on conditional liberty at the time of its commission.
With regard to the applicant's submission concerning the Henry guideline, the respondent relied upon the decision of Rothman J in Bloomfield v R [2013] NSWCCA 315 where his Honour observed at [27]: "…the maximum sentence for the offence is 20 years' imprisonment. The guideline judgement is intended to provide a range for a particular kind of offence of armed robbery by a particular kind of offender. It is not intended to set a range for a "mid-range offence," but for the kind of offence described by the Court as sufficiently common."
It was further submitted on behalf of the respondent that the guideline judgement has been held by this Court to be a check or guide and not prescriptive: Dylan Craig Lang v R [2013] NSWCCA 29 at [20] per Rothman J.

Consideration

The sentencing judge set out all of the relevant material pertaining to the applicant's subjective circumstances. It was urged upon his Honour that these strong subjective matters constituted exceptional circumstances such that this was a case in which he could properly have imposed a sentence other than full-time custody. No error can be shown in his Honour's approach in not acceding to that submission.
This was a case that, given the criminality involved, required a sentence of full-time imprisonment. As the sentencing judge pointed out, it was a serious offence that put the victim in fear. The weapon itself had the potential to hurt not only the victim but also the applicant. Even accepting that the applicant was affected by both alcohol and cannabis at the time of the offence, it was a foolish and dangerous thing to do. Compounded with that is the method of entry into the service station and the damage done in that regard.
Despite this, I am satisfied that error is disclosed in the way in which his Honour applied the Henry guideline to the applicant's case. His Honour stated that the offence fell "well and truly" within the Henry guideline. His Honour then proceeded to go through the factors listed in Henry and confirmed that they were all applicable to the applicant. One of these factors was that there was a plea of guilty. Although his Honour indicated elsewhere in his reasons that he would allow a 25% discount on sentence for the early plea and also noted the applicant's genuine remorse, it would appear that in so doing his Honour overlooked the fact that the Henry guideline pertains to a late plea of guilty with little or no utilitarian value: see R v Thomson and Houlton at [161].
In reaching this conclusion, I have had regard to the fact that the applicant committed this offence whilst on conditional liberty in that at the time of the offence he was subject to a good behaviour bond. That is clearly an aggravating factor that needed to be taken into account in the exercise of his Honour's sentencing discretion. I am nonetheless of the view that the reasons reflect error in the strict application of the Henry guideline in circumstances where the applicant presented with an early plea, genuine remorse, and a very strong subjective case, including significant family hardship as a child and a demonstrated concerted effort to turn his life around.
On my reading of his Honour's reasons with respect to the application of the Henry guideline, I am persuaded that his Honour failed to distinguish that guideline on the basis of the applicant's early plea, remorse and hardship. As Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59], "…a guideline is not a tramline." Exceptional circumstances need not be shown before a sentence less than the guideline may be imposed: Legge at [44] per Simpson J (as her Honour then was).
Error having been established, it is necessary to this court to re-exercise the sentencing discretion: Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 at [41].

Re-sentencing

I have set out the applicant's subjective background in some detail above. Despite his troubled childhood, he finished the HSC and commenced tertiary education. He only has one previous incident (comprising three matters) on his criminal history that occurred shortly before the subject offence.
To his credit, following the commission of the present offence, the applicant removed himself from Sydney and from exposure to negative influences. He subsequently successfully engaged in therapy to reduce his substance use and develop alternative ways of coping, including improved emotional regulation and goal setting.
The applicant's efforts to rehabilitate himself are encouraging and demonstrate that he has real insight into his behaviour. I accept the factual findings made by the sentencing judge, who had the benefit of seeing and hearing the applicant give evidence before him as well as evidence from the applicant's mother. Although the applicant committed a serious offence, he is young and the reports show that he still has promise and potential.
Two affidavits were filed in these proceedings to be read in the event that the Court proceeded to re-sentence the applicant. The first was one sworn by the applicant on 1 August 2016 in which he deposed that he is currently classified as a C3 prisoner, has completed four courses in custody, has had an interview for work release and has had no charges since being sentenced for this offence. The four courses he has completed are the Young Adult Satellite Program, the Addictions Program, the Foundations Program and the Gurnang Life Challenge Program.
The second affidavit was one affirmed by Sarah Crellin, a solicitor employed by the Aboriginal Legal Service. Annexed to her affidavit are various case notes obtained from the Department of Corrective Services pertaining to the applicant's custody. Apart from one adverse comment on 2 March 2016 in respect of an occasion when the applicant became abusive to staff, all other documents show positive progress. Included in the case notes annexed to Ms Crellin's affidavit is an entry dated 7 April 2016 in which it is noted that "This inmate has regular visits, he is polite to staff in the compound, doing well in the program, no problem or issues in the centre." A more recent note dated 9 July 2016 records: "Inmate is currently employed working on the farm and stated he enjoys his work. Inmate is currently waiting to his C3 classification to return and once he is signed off as a C3 is hoping to gain employment within Oberon via works release."
At the hearing of this appeal Ms Cox of counsel, appearing for the applicant, invited the Court in the event of re-sentence to apply a 35% discount for the combined effect of the early plea and remorse. She relied on [162] of Thomson and Houlton, where Spigelman CJ observed that discounts of up to 35% encompassing all relevant matters remain appropriate following that guideline.
This Court has held on a number of occasions that a numerical discount is not to be attributed to a finding of remorse: R v MAK; R v MSK (2006) 167 A Crim R 159 at [44]. Nonetheless, genuine remorse was demonstrated in this matter. The applicant gave evidence and was cross-examined in relation to it. I am satisfied that the combination of the early plea and demonstrated remorse is such that the sentence should be further ameliorated on that account.
I have had regard to the Henry guideline. In addition I have also taken into account the early plea of guilty, the genuine remorse, the initiative taken by the applicant to rehabilitate himself, as well as the fact that the applicant was on conditional liberty at the time of the offence. I have also accepted the submission made on behalf of the applicant that his moral culpability for the offence is somewhat reduced because of the social disadvantage he suffered when he was a child. As the plurality in Bugmy observed at [37], [43] and [44]: "37 An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence….." … 43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision."
As in all sentencing matters there were relevant factors pointing in opposite directions. The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 require that the applicant is adequately punished for the offence, that he is made accountable for his actions, that his conduct is denounced, that such crime be prevented by both general and specific deterrence and that the harm done to the victim of the crime and the community be recognised. It is also a purpose of sentencing to promote the rehabilitation of the offender. I am satisfied that all of these purposes can be achieved in this case by the sentence I propose.
I would make a finding that special circumstances exist within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999 on the same basis as the sentencing judge did; that is, that this is the applicant's first time in custody and that he needs to be encouraged to continue the steps towards rehabilitation that he has already taken upon his release. Taking into account all of the above matters, it seems to me that the appropriate sentence in this case is one of three years and two months' imprisonment, with a non-parole period of 20 months.

ORDERS

I propose that the Court make the following orders: 1. Grant leave to appeal against sentence. 2. Allow the appeal and quash the sentence imposed by Garling ADCJ on 2 July 2015. 3. Re-sentence the applicant to a term of imprisonment comprising a non-parole period of 20 months to commence on 6 May 2015 and expire on 5 January 2017 and a balance of term of 18 months to expire on 5 July 2018. The total effective sentence is imprisonment for three years and two months. The first date on which the applicant will become eligible for parole is 5 January 2017.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2016

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