R v Afele

Children (Criminal Proceedings) Act 1987 LEGISLATION CITED: Crimes Act 1900, s 59(2), s97(1) Crimes (Sentencing Procedure) Act 1999 s21A, s44

Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Diamond NSWCCA, unreported, 18 February 1993 R v Hallacoglu (1992) 29 NSWLR 67 CASES CITED: R v Tran [2005] NSWCCA 35 The Queen v Lowe [1984] HCA 46; 154 CLR 606 The Queen v Postiglione [1997] HCA 26; 189 CLR 295

Crown - Respondent PARTIES: Suafoa Afele - Applicant

D Woodburne - Crown COUNSEL: C Craigie SC - Applicant

S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/773

McCLELLAN CJ at CL SIMPSON J HOWIE J

Wednesday 7 September 2005 REGINA v Suafoa AFELE Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: During the early hours of the morning of 8 December 2002 the applicant committed one offence of assault occasioning actual bodily harm whilst in company, and, very shortly afterwards, two offences of robbery, also whilst in company. 3 By s59(2) of Crimes Act 1900, the commission of the offence of assault occasioning actual bodily harm in company exposed him to a maximum penalty of imprisonment for seven years; by s97(1), each offence of robbery in company exposed him to a maximum penalty of imprisonment for 20 years. 4 The applicant pleaded guilty to each charge. On 30 July 2004 Woods DCJ passed sentence. On the assault charge, he imposed a sentence of imprisonment for three years with a non-parole period of two years, commencing on 28 July 2004. On each of the robbery counts, he sentenced the applicant to imprisonment for three years with a non-parole period of one year, commencing on 29 July 2005 (that is, to be served concurrently with one another, but partially cumulatively upon the sentence earlier imposed). The total effective sentence, therefore, was of imprisonment for four years with a non-parole period of two years. In structuring the sentences as he did, Woods DCJ found that special circumstances, within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") existed, justifying departure from the statutory proportions between the head sentence and the non-parole period. 5 The applicant now seeks leave to appeal against the severity of these sentences. The grounds finally advanced on his behalf may be encapsulated as follows:

(1) that the sentence imposed in respect of the first count (assault) is manifestly excessive;

(2) that, having regard to sentences imposed upon two co-offenders, each sentence gives rise to a justifiable sense of grievance.

(i) assault occasioning actual bodily harm in company 6 Shortly before 3.30 am on Sunday 8 December 2002, three men, Anthony Costagliola, Jeffrey Suter and Mario Figueroa, were walking in King Street in the city. They were accosted by a group of about ten to twelve men, of whom the applicant was one. Melemele Foaga, an older cousin of the applicant, and a juvenile (to whom I will refer only as MO) were also present in the group. One of these men (it appears not to have been the applicant) demanded Mr Costagliola's property, making threatening gestures to suggest that he was in possession of a firearm (which, it seems to be common ground, he was not). Mr Costagliola surrendered a gold bracelet and a gold necklace and cross. Another of the applicant's group sought to steal property from Mr Figueroa. A number of the men, including the applicant and Foaga, punched and kicked Mr Costagliola until he fell to the ground. One of the men then removed his wallet from his pants. Some of them prevented his associates from assisting Mr Costagliola. They again assaulted him by kicking and punching him, until he again fell to the ground. The applicant's group then left the area, warning the three men not to report the matter to police, and threatening them by saying that, because of the property they had stolen, they knew where Mr Costagliola lived. Mr Costagliola suffered a black swollen left eye with multiple bruising to the forehead, nasal bridge, right shoulder and left lower ribs and a conjunctival haemorrhage in the left eye. The attack on Mr Costagliola constituted the first offence of assault occasioning actual bodily harm in company. For convenience and brevity, I will refer to it as the assault offence.

(ii) the robberies 7 Less than an hour later the applicant's group accosted another two men, Mr Chris Clarke and Mr Mark Murray, who were walking in Darling Harbour. 8 MO asked Mr Murray for a cigarette, and then asked if he had a telephone or a wallet. One of the men held Mr Murray's shirt at the front, while MO removed his wallet, which he returned after extracting $40. Another of the men removed his mobile telephone, valued at $600. 9 Foaga caused Mr Murray to sit, while his pockets were searched. One of the men took his mobile telephone and then his wallet, from which $120 was taken before it was thrown on the ground. Foaga then pushed Mr Murray in the chest, before being told that his money had already been taken. The applicant's group then left. The attacks on Mr Murray and Mr Clarke constituted, respectively, the second and third offences of robbery in company. 10 The applicant, Foaga and MO were arrested shortly thereafter. The applicant was in possession of Mr Murray's telephone. Foaga held $105. 11 Foaga and the applicant were interviewed. The applicant made some admissions.

subjective circumstances 12 The applicant did not give evidence in the sentencing proceedings. A pre-sentence report prepared by the Probation and Parole Service was provided as part of the Crown case. On the applicant's behalf a psychological report, prepared by Mr John Taylor, was admitted. Three references, including one from his employer, were presented to the court. 13 From this material, a powerful subjective case, to the following effect, emerged. 14 The applicant was born on 22 May 1984. He was eighteen and a half years of age at the time of the offences. He had had no previous encounters with the criminal law. He was born in New Zealand, the second youngest of five children, of parents of Samoan origin. The family lived in New Zealand until migrating to Australia when the applicant was 16 or 17. Although the history records that the applicant spent some time in New Zealand living apart from his immediate family, with an uncle, there is no report of any disharmony or other family problem. The reports describe the family as supportive and positive, close and stable. It is actively involved in the Samoan Church in Sydney. On migration to this country the family settled in the western suburbs of Sydney. The applicant's schooling was in New Zealand. He described himself as an average student with satisfactory relationships with his peers and no disciplinary problems. 15 After leaving school, the applicant had a variety of forms of employment of an unskilled kind. At the time of sentencing, he had, for about twelve months, held casual employment as a landscaping labourer. His employer valued him highly. He was active in the Central Sydney Samoan Church and had been instrumental in the organisation of a programme involving visiting and entertaining young offenders in a juvenile justice correction facility. He had been involved in community projects, charity fundraising, and outreach programmes. He was a member of a football team, apparently showing some promise. 16 He had, however, a significant problem with alcohol consumption, which began when he was 18 years of age. Indeed, he claimed (and there was no reason to doubt it) that he had been heavily intoxicated at the time of the offences. 17 Psychological assessment took place on 21 April 2004, that is, sixteen months after the offences. Psychological testing disclosed that the applicant had rather immature personality functioning, and limited personality and emotional resources, and an above-average predisposition for substance abuse. At the time of the psychological assessment he was showing symptoms of reactive anxiety with respect to the then pending sentencing proceedings, and was tense, worried and apprehensive. Mr Taylor considered that, when under the influence of alcohol, he would have ineffective methods for restraining impulses, coordinating defences, and resolving conflicts. He had low levels of self-esteem and confidence, creating strong needs for dependence on others. Mr Taylor expected that the applicant's behaviour would, at times, be erratic by reason of conflicts he would experience between his own needs and desires as opposed to the perceived expectations of others. 18 Despite his own perception of his educational achievement, Mr Taylor assessed him as having borderline intellectual functioning. Mr Taylor thought that he had learned from the experiences referable to the present charges, and that he would benefit from an extended period of supervision, during which time he should be required to abstain from abusing alcohol. 19 Importantly, Mr Taylor assessed him as having a lower than average likelihood of recidivism. He retains the support of his parents and stated his intention of continuing to live with them when free to do so. Because of their religious affiliations, the applicant had concealed from them his alcohol use. 20 He was said, by the author of the pre-sentence report, to have been in a relationship for eight months, which appeared to be developing in him greater stability and maturity. 21 The applicant's employer, in his reference, described what had occurred when the applicant disclosed his offending. He wrote: "[The applicant] come to me about three months ago and asked me if I had a few minutes to spare has he needed to talk. I could honestly say he broke down in tears trying to tell me what went wrong on the night of the event. I could not honestly believe that he would do or be involved in such a thing. We have since had many good chats and I am sure he has learnt a lot from this. [The applicant] is a very good person at heart and caring towards other people. He would go many miles to help others, My company did a voluntary project at Hornsby Hospital in the Kids words as he knew I was not getting paid for this project he refused to except any many for those three days work."

co-offenders 22 Foaga was sentenced in the same proceeding as was the applicant. It is of considerable importance that the charges he faced were not identical. The charges to which Foaga ultimately pleaded guilty were the offence of assault occasioning actual bodily harm in company on Mr Costagliola (identical to the first charge against the applicant); one count of receiving (being driver's licences and a "movies 4 U card", all the property of Mr Costagliola); and with two counts of assault, one each on Mr Murray and Mr Clarke. 23 Given the nature of the grounds of the application, it is of some significance and worth noting here that, while, in relation to the attacks on Mr Murray and Mr Clarke, the applicant was charged with robbery in company, carrying maximum penalties of imprisonment for 20 years, Foaga was charged with assault, carrying (pursuant to s61 of the Crimes Act) maximum penalties of imprisonment for two years. 24 Foaga is older than the applicant by almost four years. He was 22 ½ years of age at the time of the offences. Unlike the applicant, he had some criminal history which appears to have begun in late 1998 and included two counts of assault, four counts of resisting arrest, one of intimidating a police officer in the execution of his duty, one of stealing from the person and another of larceny, and one of maliciously destroying or damaging property. 25 Foaga suffered from a very significant medical condition, which was diagnosed in 1998. It requires him, three times a week, to undergo dialysis treatment in a hospital. Each treatment takes five hours. It appears that the commencement of his offending coincided with the diagnosis, with which he did not cope very well, of this condition. 26 Having regard to all these matters, Judge Woods sentenced Foaga, on the assault, to imprisonment for three years with a non-parole period of two years and three months, which he ordered to be served by way of periodic detention; on each of the remaining charges, of receiving and assault, he imposed a fixed term of one year, to be served concurrently with each other and with the sentence for the assault, and also to be served by way of periodic detention. 27 MO was seventeen years and four months at the date of the offences, and was dealt with in the Children's Court, in accordance with the provisions of the Children (Criminal Proceedings) Act 1987. He was subjected to a period of probation for two years and required to undertake 75 hours of community service. The precise charges laid against him are not clear.

the remarks on sentence 28 As I have indicated, Judge Woods sentenced the applicant and Foaga in a joint sentencing exercise. However, his Honour was careful to distinguish between the cases against (and the subjective cases for) the two men. He was also conscious of the circumstances concerning the sentencing of OM. 29 Judge Woods carefully reviewed the material before him. He paid particular attention to the matters reported by Mr Taylor. He accepted that there were no aggravating factors to be taken into account pursuant to s21A(2) of the Sentencing Procedure Act. He accepted Mr Taylor's assessment that there was a lower than average risk of recidivism; and that the offences were not planned to any degree: "but were the result of a kind of group madness that takes over young drunk men with nothing better to do with their time and an absence of inhibition".

He took into account, as he said, "very significantly" the applicant's youth and his prior good character. He characterised the conduct of the evening as: "Shocking, unacceptable, and requires people to be deterred from engaging in it." 30 He appears to have accepted that the remorse expressed by the applicant was genuine. His Honour was conscious of the relativities to be observed in sentencing the applicant and Foaga, and of the manner in which MO had already been dealt with in the Children's Court. He drew some comparisons and contrasts between the applicant and Foaga, some of which (such as age and prior criminal record) favoured the applicant; but he was also conscious of the significant divergences in the charges brought against the two in relation to the Clarke and Murray offences. He expressly rejected an argument that had been put to him that, by reason of the penalty imposed on MO, the applicant should be given a non-custodial penalty. He said: "It has been urged on behalf of Mr Afele that I should take the course of imposing a non-custodial sentence. While I am alert to the availability of it, and while I have turned it over in my mind, I regret to say that the law as it stands, the pattern of sentencing laid down and re-emphasised by the Court of Criminal Appeal repeatedly, allows me no alternative in the case of Afele but to impose a sentence of full-time custody in relation to the offences to which he has pleaded guilty."

ground (1): manifestly excessive? 31 In written submissions, counsel who then represented the applicant argued that: "... when regard is had to the maximum penalty, the absence of aggravating factors and the presence of multiple mitigating factors indicates that a sentence of three years' imprisonment is manifestly excessive for Count 1." 32 She contended that, had the assault offence been the only offence for which the applicant was to be sentenced, there would have been compelling reasons for not imposing any form of custodial sentence. Counsel implicitly recognised, however, that the robbery charges carried virtually an inevitability of a prison sentence, which would make a non-custodial sentence in relation to the assault offence impracticable. In that circumstance, she submitted, a short fixed term of, perhaps, three months' imprisonment would adequately have met the demands of sentencing principle. 33 The total sentence imposed was almost half of the maximum available. This was in the context of an offender who displayed (as counsel described them) "multiple mitigating factors", and no aggravating factors; an offender who was entitled to the benefit of the principles relating to the sentencing of youthful offenders; who was entitled to the benefit of his prior good character; and who was entitled to the benefit of the finding of remorse and contrition (which did not, perhaps, explicitly recognise the extent of the applicant's remorse and contrition as described by his employer). Further, he was entitled to (and received) the benefit of a reduction of his sentence by reason of his plea of guilty. But this, in reality, makes the argument even more compelling. The judge expressly stated that, but for the plea of guilty, the sentence would have been one year longer. In other words, in relation to a first offence, by a young offender with a strong subjective case, the sentence imposed would, but for the plea of guilty, have been more than half - 57% - of the maximum available. That raises the question of where the applicant's offence stands on the scale of objective gravity. It was a serious instance of this offence. While the fact that it was committed in company did not aggravate it (that being an element of the offence, and built into the maximum penalty provided) the sheer number of participants was relevant to the assessment of objective gravity, moving it towards the upper end of seriousness. And while the injury to Mr Costagliola may not have been as serious as is, regrettably, sometimes seen, particularly after incidents such as the one here under consideration, it has to be borne in mind that the applicant was charged with causing actual, not grievous, bodily harm. That fact is also built into the maximum penalty provided. It would not have taken very much more for the injuries to have fallen into the classification of grievous bodily harm - by which I mean that it is possible to see the injury as towards the top of the range of injuries sustained after offences of this kind. Nevertheless, in my opinion, a sentence of 57% of the maximum could be seen, in all the circumstances, as disproportionate. 34 Counsel also drew attention to another passage in the remarks, in which his Honour, in drawing distinctions between the two offenders, said: "There are significant differences between the situations of these offenders. One is the matter of comparative criminal histories, to which I have referred, which is in Afele's favour, and there is the question of age, which, similarly, is marginally in his favour ." (emphasis added) 35 It is true that this observation was made specifically in relation to parity considerations to which I will shortly come. I accept, as was submitted, that it would appear from this passage that the applicant was given inadequate recognition of those sentencing principles relating to youthful offenders. Age was not "marginally" in his favour; he was at the very lowest age range of offenders sentenced in adult courts. 36 I have concluded that a starting point of 57% of the maximum penalty available reduced by 25% in recognition of the plea of guilty represents a sentence appropriate to the objective gravity of the offences, but it does not reflect the strong subjective case, which entitled the applicant to some reduction. 37 I have, after some hesitation, come to the view that this ground of appeal has been made out. Regrettably it avails the applicant little. That is because the manner in which all sentences were structured took the sting out of the disproportionately high sentence. Firstly, the finding of special circumstances meant that the non-parole period, which would otherwise have been two years and three months was reduced to two years; and, secondly, the partial concurrency of the subsequent sentences had the effect of reducing the effective sentence for this offence to a fixed term of one year. Except for the period of one year between 29 July 2004 and 28 July 2005, the sentence is entirely subsumed in those subsequently passed. Had the applicant stood for sentence only on the assault offence, the error would, of course, have been of considerable significance. But its effect has been swallowed by subsequent events. 38 Counsel then submitted that, apart from parity considerations, it would have been open to his Honour, in respect of the assault offence, to have made a Community Service Order. In my opinion the concession that the robbery offences called for a full-term period of custody was a concession properly made. A Community Service Order would have been quite inappropriate and, as counsel said, impracticable, in the light of the need for a full-time custodial sentence in relation to the robbery offences.

(i) Count 1: assault occasioning actual bodily harm in company 39 The basis on which a sentence imposed upon one co-offender will be reduced by reason of a sentence imposed on another co-offender has been explored on many occasions: see The Queen v Lowe [1984] HCA 46; 154 CLR 606; The Queen v Postiglione [1997] HCA 26; 189 CLR 295; R v Diamond (NSWCCA, unreported, 18 February 1993); R v Tran [2005] NSWCCA 35 at [23] - [25]. 40 The distinction between the sentences imposed on the two offenders in respect of this offence is principally the manner in which the sentence is to be served. Each was sentenced to a full term of three years; the applicant to a non-parole period of two years, and Foaga to a non-parole period of two years and three months. However, Foaga was permitted to serve his sentence by way of periodic detention. Such an order imports a significant degree of leniency: see R v Hallacoglu (1992) 29 NSWLR 67. There is a vast difference between a sentence to be served by way of periodic detention and the same sentence to be served in full-time custody. I can see only one legitimate justification for that discrepancy. That was Foaga's quite dire medical condition. Indeed, his Honour regarded him as being, in a sense, incarcerated by reason of his need to submit to lengthy treatment three times each week. That was by no means an insignificant consideration. His Honour also accepted psychological evidence that Foaga's offending was triggered by the diagnosis of his condition and his response to it. It is to be remembered that Foaga is four years older than the applicant is, and had a significant criminal record. If the assault offence were the only offence under consideration, I would be satisfied that the disparity was one that would justify the intervention of this court. But it was not the only offence. 41 Although it is more difficult to compare the treatments of offenders where one has been dealt with under the provisions of the Children (Criminal Proceedings) Act, that does not mean that the disposition of the charges against MO is completely irrelevant. Woods DCJ appears to have been inclined to the view that MO was dealt with in an erroneously lenient way. During the proceedings on sentence, in remarks which are not incorporated into the final sentencing remarks (and which therefore must be treated with some caution), his Honour said: "The courts have repeatedly said in recent times that if a judge perceives that another sentence imposed is manifestly wrong he should ignore it. But I am not saying the decision in the sentencing of [MO] was manifestly wrong, but he's a juvenile. Your client is not." 42 The sentences imposed on MO do not give rise to a justifiable sense of grievance.

(ii) the robbery offences 43 There is a vast difference in the way the applicant was treated, and the way Foaga was treated, in relation to what I will globally call the Clarke and Murray offences. Foaga was sentenced to imprisonment for one year, to be served by way of periodic detention and to be served wholly concurrently with the first sentence; the applicant was sentenced to imprisonment for three years, with a non-parole period of one year. Unlike the sentences imposed upon Foaga, these sentences were made partially cumulative upon the earlier sentence. 44 But the difference in sentencing is wholly accounted for by the difference between the charges faced by the two offenders, the applicant having pleaded guilty to two charges of robbery in company, each carrying a maximum penalty of 20 years, as against the two charges of assault to which Foaga pleaded guilty, each carrying a maximum penalty of two years. 45 Counsel for the Crown also suggested that some difference exists between the two offences in relation to the timing of the pleas of guilty. She argued that the robbery charges were charges on which the applicant was arrested and committed for trial, but that the pleas in relation to those offences (unlike the assault offence) were entered on the day fixed for trial; by contrast, Foaga appears to have negotiated a reduction in the charges, and achieved this on the day of trial, and therefore entered his pleas at the first available opportunity. 46 There was no explanation for the different ways in which the two offenders were charged. I can see nothing in the statement of facts, which was agreed, which would warrant that distinction. But this court does not sit to review prosecutorial discretion. The fact is, Woods DCJ was called upon to sentence the two offenders on a quite discrepant basis. While I can understand that the applicant might well nurture a sense of grievance at the unequal outcome, his grievance is properly directed at the decision of the Crown to accept the pleas of guilty, in Foaga's case, to charges of assault and, in the applicant's case, to maintain the charges of robbery in company. 47 In the result the sentences imposed upon the applicant have to be assessed in the light of the totality of the offending, the totality of the effective sentences and in the light of the charges to which he pleaded guilty. When the sentences are examined in the clear light of day, it cannot be concluded that overall sentences of four years with a non-parole period of two years, in respect of three serious offences is manifestly excessive. 48 In order to comply with the dictates of Pearce v The Queen [1998] HCA 57; 194 CLR 610, it is necessary to set aside the sentence imposed in respect of the assault offence, and re-sentence, but in such a way as does not interfere with the overall sentences imposed. 49 I propose that, on that count, the applicant be re-sentenced to imprisonment for a fixed term of 18 months, commencing on 28 July 2004. I would otherwise grant leave to appeal but dismiss the appeal. 50 The orders I propose are:

(ii) the sentence imposed in respect of Count 1 set aside;

(ii) in lieu thereof, applicant re-sentenced to a fixed term of imprisonment of 18 months, to commence on 28 July 2004 and expire on 27 January 2006;

(iv) appeal otherwise dismissed. 51 HOWIE J: I agree with Simpson J.

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