R v Ahomana, Culph, Soakai & Timoteo [2001] VSCA 155

Court of Appeal (Vic)|2001-09-10|Before: WINNEKE, P., VINCENT, J.A. and O'BRYAN, A.J.A.

Criminal law - Sentencing - Robbery and other charges - Plea of guilty - Youthful offenders - Cumulation - Parity - Total effective sentences in three cases manifestly excessive - Correction of the Record of Prisoners.

Ms. Kay Robertson, Solicitor for Public Prosecutions

The four applicants together with one Jonathon Tavo pleaded guilty in the County Court sittings at Mildura on 31 October 2000 to six counts contained in a presentment which alleged separate offences affecting one or more of the applicants. All the offences were committed at Mildura on 3 March 2000.

Count 1 alleged that the applicant Ahomana and Tavo robbed Douglas Spinks of a wallet, Commonwealth Bank key card, mobile telephone and certain money.

Count 2 alleged that the applicant Ahomana and Tavo assaulted the said Spinks and unlawfully imprisoned him and detained him against his will.

Count 3 alleged that the applicant Culph dishonestly attempted to obtain from one Williams certain money with the intention of permanently depriving the said Williams of the said money by deception, namely, by falsely representing that he was authorised to use a Commonwealth Bank key card belonging to the said Spinks.

Count 4 alleged that the four applicants together with Tavo robbed David Malosso of a pair of shoes, a belt, a wallet, Bendigo Bank key card, mobile telephone and certain money.

Count 5 alleged that the applicants Ahomana, Soakai and Culph assaulted David Malosso and unlawfully imprisoned the said Malosso and detained him against his will.

Count 6 alleged that Soakai and Culph without lawful excuse recklessly caused serious injury to the said Malosso.

9 The offender Tavo was sentenced to a term of imprisonment but opted not to appeal the sentences.

The applicant Ahomana was born on 4 May 1981 and was 18 years 10 months at the time the offences were committed and 19 and a half years of age on the date of sentencing. The applicant Soakai was born on 8 August 1980 and was 19 years 7 months in March 2000 and 20 years of age on the date of sentencing. The applicant Culph was born on 23 October 1981 and was 18 years 5 months in March 2000 and 19 years of age on the date of sentencing. The applicant Timoteo was born on 29 November 1974 and was almost 26 years of age on the date of sentencing.

Ahomana admitted 15 previous convictions from six court appearances between 1995 to 1998. None of the convictions were for offences involving violence or robbery but they did include theft and burglary.

With cumulation Ahomana was ordered to serve a total effective sentence of five years' imprisonment and a non-parole period of three years was fixed.

It is important to note that the Return of Prisoners convicted at the sittings of the County Court held at Mildura sentenced on 13 November 2000 erroneously records that Terry Ahomana was sentenced to four years' imprisonment on Count 4. The sentencing judge clearly intended to impose a sentence of two years' imprisonment on Count 4 as he said in his sentencing remarks at p.42 that each of the offenders charged with Count 4 was sentenced to two years' imprisonment.

The error is obviously a clerical mistake or an error arising from an accidental slip or omission which should be corrected.

Culph admitted 22 previous convictions from three court appearances between 1995 and 1998. They included offences such as theft, five charges; attempted theft, three charges; and burglary, but no prior offence involved violence or robbery.

With cumulation Culph was ordered to serve a total effective sentence of four years and three months and a non-parole period of two years and six months was fixed.

Soakai had no prior convictions. Following plea Soakai was sentenced:

With cumulation Soakai was ordered to serve a total effective sentence of four years' imprisonment. A non-parole period was fixed of 18 months.

On 17 August 2001 Soakai was granted parole. His pre-sentence detention before parole was 533 days.

Timoteo admitted four prior charges had been found proven and was placed on probation at the District Court at Brisbane in 1996. The charges did not involve violence to the person or robbery, but included two charges of stealing. Following the plea Timoteo was sentenced:

A non-parole term of 12 months was fixed. Timoteo was granted bail by this Court on 15 December 2000. Bail terminated on 6 September when the hearing of these applications commenced. This pre-sentence detention has now been 297 days.

Each applicant gave notice of application to appeal against sentence on four grounds. Ground 2, which stated that the sentencing judge failed to give sufficient weight to the principle of parity, was abandoned in all cases except Soakai.

Ground 1 in each case stated that the sentencing judge did not give sufficient weight to specified mitigatory factors.

Count 3 in each case stated that the sentencing judge erred in failing to order greater concurrency.

Ground 4 in each case stated that the sentencing judge erred in passing sentences both individual and total which are manifestly excessive.

A summary of evidence prepared by the Solicitor for Public Prosecutions describes accurately and adequately the relevant facts and circumstances of the offences. In all counts save Count 3 the offences occurred when two or more persons were acting in concert or aiding and abetting one another.

In essence, however, two robberies were committed on two individuals who were assaulted and falsely imprisoned. Only Ahomana and Tavo were involved in both robberies, but Ahomana's active role in the robbery of Malosso was less than that of the other applicants. However, he was complicit in the robbery, assault and false imprisonment as a person who acted in concert or aided and abetted the other offenders.

On Friday 3 March 2000 at about 3:30 a.m. the victims, Spinks and Malosso, were walking home together along Eighth Street in Mildura. Near the intersection of Eighth Street and Lime Avenue they were approached by Culph and an unknown male. A short conversation took place before they were joined by Ahomana. Ahomana and Culph offered to sell the victims cannabis. While this was happening the victims noticed that there were more males approaching them. They became worried about the group of males and agreed to buy cannabis for $25 from the applicants hoping this would mean that they could be on their way. Ahomana told Spinks that he would have to go to a nearby house to obtain the cannabis. Spinks tried to get Malosso to walk off but he was made to stay with Culph and the others, which soon included Tavo, Soakai and Timoteo.

Ahomana took Spinks into Steedman Lane between Eighth and Seventh Streets and told him to wait while he went into a house. Spinks waited for about five minutes and started to walk back down the laneway when he was approached by Ahomana, Tavo, and one other person not identified. Ahomana then struck Spinks in the region of the head. Ahomana and Tavo then punched and kicked Spinks forcing him to the ground. Whilst they were assaulting him they were demanding his mobile telephone, wallet and money, and his PIN for his key card. Ahomana removed Spinks' wallet from his pocket and threw it on the ground. Someone took the mobile telephone and threw it on the ground and destroyed it. Spinks was further kicked and punched and forced to provide his PIN for his key card. Eventually Spinks told them the number. This provides a description of Counts 1 and 2.

Whilst Spinks was being assaulted Malosso was led away from the corner of Eighth Street and Lime Avenue by Culph, Soakai, and an unknown male. He was taken to the corner of Eighth Street and Pine Avenue where he was punched by one of the males which knocked him to the ground. Culph then also started to punch and kick Malosso whilst they demanded money from him. Soakai then joined them and also tried to get money from Malosso. Soakai then stole Malosso's belt and shoes and put them on. He attempted to put his shoes on Malosso but Malosso kicked the shoes off which further enraged the offenders. Culph stole Malosso's mobile telephone and tried unlock it so he could use it. They then dragged Malosso by the hair into a vacant block near the corner of Pine Avenue and Eighth Street. The lane runs across the back of the block. Spinks was only about 40 metres from where Malosso was. They took Malosso into the block and again kicked and punched him. Culph stole Malosso's wallet and car keys from his pocket and removed the Bendigo Bank key card from the wallet. Malosso was further kicked and punched in an effort to get his PIN. Malosso gave them a number but it was false. The foregoing describes Count 4.

Malosso was then held against his will in the vacant block while Culph went into the lane and joined Ahomana and two other males. Culph then took Spinks' key card and PIN. Spinks was held in the lane with the threat of further violence from Tavo and others whilst Culph attended at Coles Supermarket in Lime Avenue. Culph attempted to gain money from Coles by using Spinks' key card. He was unsuccessful in his attempt and left the store. The foregoing describes Count 3.

Culph then took Malosso's key card to the Bendigo Bank and attempted to draw funds from the ATM. As the PIN was false this was unsuccessful and Culph returned to the lane and told the others that Spinks had given them an incorrect PIN. Culph, Ahomana and other unknown assailants then kicked and punched Spinks again. Spinks was forced to remove all of his clothing except for his underwear and his socks. When one of the offenders threatened Spinks, Spinks was able to push him away with his foot and got up and ran down the lane. Someone chased him and again assaulted him, but Spinks was again able to get away. Culph was not charged with assaulting and imprisoning Spinks.

The assailants then went to where Malosso was being held in the vacant block. Malosso was further kicked and punched to the head by some of the offenders until he gave them the correct PIN for his key card. Soakai took the key card and PIN and went to the Bendigo Bank ATM and removed $590 from Malosso's account. The assailants held Malosso until Soakai returned with the money. During this time Malosso tried to pretend that he was asleep so that the assailants would not assault him further. When Soakai returned he gave the money to Timoteo who proceeded to hand each assailant $50. The offenders then left telling Malosso not to report the matter to the police. A short time later Malosso ran home. The foregoing describes Counts 5 and 6.

Later that morning Ahomana, Culph and Soakai were arrested by police, having been identified by Spinks who was with police in a patrol car. Culph was found to be in possession of Malosso's mobile telephone and cash which came from Malosso's account. Soakai was found to be wearing Malosso's belt and he had cash on him which had come from the victim's account. Ahomana had a $50 note on him which also came from the victim's account.

Tavo and Timoteo were arrested on 6 March 2000.

All the applicants were interviewed at Mildura Police Station. Ahomana, Culph and Soakai all made full admissions in relation to the offending. Timoteo denied all allegations put to him, but later made admissions against interest to another person.

The victim Spinks was traumatised, degraded and bruised by the attack. He felt humiliated having to run for help wearing only his underwear. Malosso sustained serious facial wounds, bruising and bleeding, and was also traumatised by the attack.

Victim impact statements from Spinks and Malosso were not available to the sentencing judge when pleas were made.

Each applicant relied upon a report made by Mr Bernard Healey. Each applicant placed reliance on a history of alcohol abuse and smoking cannabis. The prior convictions of Ahomana and Culph included convictions for alcohol and drug offences. Ahomana and Timoteo each told Mr Healey he was intoxicated at the time the offences were committed and he couldn't recall the circumstances.

Timoteo was born in New Zealand of Samoan parents, was in sound health when Mr Healey saw him, but below average intellectual capacity.

Ahomana was born in Sydney of Tongan parents. He told Mr Healey he was ashamed of his conduct. Testing for intellect and personality revealed he had retarded functioning. Personality testing was not indicative of psychological or emotional disturbance.

Mr Healey said Culph was of average intelligence, but had problems with alcohol and drugs.

Soakai's position was similar to that of the other offenders.

Mr Kowalski for the applicant Ahomana argued ground three first. He conceded that a measure of cumulation was appropriate because two robberies upon two victims were involved and the offences were serious. He submitted that the cumulation orders which produced a total effective sentence of five years did not have due regard to the role of the offender, particularly in regard to Counts 4 and 5, and greater concurrency was called for.

Although Ahomana was a principal offender with Tavo in the robbery and assault involving Spinks, he was not the prime offender in the robbery and assault involving Malosso, Mr Kowalski submitted. Accordingly, he said, less cumulation was appropriate in respect of Counts 4 and 5.

Mr Kowalski further submitted that the following factors were not given sufficient weight in Ahomana's case. They were:

* Youth: Ahomana was 18 in March 2000; he was retarded to a degree.

* Guilty Plea: He pleaded guilty at the earliest opportunity; and he had no record for violence.

* Custodial Sentence: He faced a custodial sentence for the first time in an adult prison.

In all these circumstances it was argued the cumulation orders produced a total sentence which was excessive, Mr Kowalski submitted.

Mr Grant for the applicant Soakai submitted that because his client had no prior convictions principles of parity required the sentencing judge to impose a lesser sentence on Count 4 than the sentence chosen for the other offenders, particularly Culph, who had prior convictions. Different sentences and less cumulation was called for in these circumstances, Mr Grant submitted.

Mr Grant also submitted that because his client was a first offender youth needed to be emphasised and given effect to, applying the principles stated by Batt, J.A. in R. v. Mills[1]. Further, since being taken into custody Soakai had undertaken courses and overcome his alcohol and drug dependence problems.

Mr Grant submitted that the total sentence was crushing for a youthful offender with no prior convictions who is now living with his wife and children in Queensland.

Mr Gleeson who appeared for Culph submitted that in making cumulation orders in respect of each sentence the total sentence became excessive. Mr Gleeson submitted that too little weight was given to his client's age when the offences were committed. Some concurrency was appropriate, he submitted, but total cumulation was not. He argued that with offences such as Counts 5 and 6 there was overlapping and the counts were concerned with one episode of conduct involving Malosso.

Ms McNiff rather boldly submitted that her client Timoteo should have received a lesser sentence on Count 4 than his co-accused. Ms McNiff submitted that Timoteo had good prospects of rehabilitation, had pleaded guilty, and that the sentence he received was manifestly excessive in the circumstances.

I have summarised the oral submissions of counsel briefly. Counsel also relied upon written submissions in identical terms which dealt more fully with the matters covered succinctly in oral argument.

Mr Elston for the Crown submitted that the sentences were stern but necessary in all the circumstances. The attack upon Spinks and Malosso was brutal and mean, he said. Although there was one course of conduct, a lot of criminality was involved, Mr Elston submitted, therefore cumulation was appropriate to reflect the criminality of the conduct.

As was recently said in this Court in R. v. Sherpa[2]:

"There is always scope for youth and concomitant prospects of rehabilitation to influence the sentencing discretion".

This is particularly important when a youthful offender is before a court for the first time and faces for the first time the prospect of imprisonment in an adult prison. However, youth is a relative matter. Some youths mature earlier than others and some show a propensity for criminal conduct which doesn't augur well for the future. It should be remembered that at age 18 a person is an adult in the eyes of the law. At 18 a person is entitled to marry, to vote, and to drive a motor vehicle. The applicant Soakai although only 19 and a half at the date of offending was married and had children. The applicant Timoteo was no longer a youth when he offended.

It will be convenient to deal first with the application brought by Timoteo. In my opinion the application should be dismissed. Timoteo was the oldest of the five offenders, he aided and abetted four other offenders when Malosso was robbed. He received $50 from the money obtained from Malosso's bank as a share of the proceeds.

The five offenders were all sentenced to imprisonment for two years on Count 4. The sentencing judge could not impose a lesser sentence on Timoteo for robbery than he imposed on the other offenders. Timoteo was culpable to the same extent as his co-accused.

By way of introduction to my decision in respect of the other three applicants I indicate I agree with the submission of Mr Elston that the conduct of the applicants towards Spinks and Malosso displayed serious criminal conduct generally calling for stern punishment in the case of each offender. Courts have to deter persons in this age group from congregating together for the purposes of robbery and the infliction of injuries upon innocent victims. The attack on each victim was cruel and cowardly. The sentencing judge was entitled to say, as he did:

"This was an appalling display of violence. It was cowardly and brutal and took place over a not inconsiderable period of time ... You all gathered strength from your group of overwhelming numbers and treated the two victims any way you saw fit."

I also consider that if alcohol or drugs played a role, as counsel suggested, it probably only made the offenders more aggressive than usual.

Turning from the general to the particular and commencing with the application of Ahomana. I am persuaded that the totality of his sentence is excessive on account of the cumulation orders. It is difficult to understand the cumulation orders made by the sentencing judge but the intent was to impose a total sentence of five years on Ahomana. Whilst it is true that Ahomana pleaded guilty to two counts of robbery and two counts of assault and unlawful imprisonment of the two victims, his role in relation to Malosso was less as a principal offender than the role of others.

I am not persuaded, however, that any of the individual sentences was excessive. The sentences gave sufficient weight to the mitigatory factors relied upon by counsel.

In the circumstances already mentioned lesser cumulation orders should have been made particularly because Ahomana and his co-accused faced the impact of adult gaol for the first time. A custodial sentence is a stern lesson for a youthful offender.

I would, therefore, propose to the Court that the sentences and orders for cumulation be set aside in the case of Ahomana and that this Court impose the following sentences:

I further propose that the Court direct that one year of the sentence imposed on Count 2 and one year of the sentence imposed on Count 4 be served cumulatively upon each other and upon the sentence imposed on Count 1.

Accordingly, Ahomana will serve a total effective sentence of four years. I propose a new non-parole term of two years be fixed.

In the application of Culph I am persuaded that the sentencing judge made orders for cumulation which produced a total sentence in excess of what was required in the circumstances. No individual sentence was excessive, in my opinion.

I therefore propose to the Court that the sentences be quashed and the Court impose sentences as follows:

I propose to the Court that the sentence of three months imposed upon Count 3, six months of the sentence imposed on Count 5, and six months of the sentence imposed on Count 6 be served cumulatively upon each other and upon the sentence of two years imposed on Count 4.

This will produce a total effective sentence of three years and three months reducing the current sentence by one year. A new minimum term of 21 months is also proposed.

73 Some cumulation was necessary but not total cumulation.

In the application of Soakai I reject the argument raised in ground two based upon principles of parity. However, mitigatory factors raised by Mr Grant are compelling and have persuaded me that the totality of the sentence was excessive.

The sentences imposed on Soakai are therefore quashed and I propose that in lieu the following sentences be imposed:

I further propose that six months of the sentence imposed on Count 5 and six months of the sentence imposed on Count 6 be served cumulatively upon each other and upon the sentence of two years imposed on Count 4.

This will produce a total effective sentence of three years. A minimum term of 18 months will be fixed.

As Soakai has been released on parole the reduction in the total sentence of 12 months is important for him.

For these reasons I am of the opinion that the applications for leave to appeal sentence should be allowed in the cases of Ahomana, Culph and Soakai, and dismissed in the case of Timoteo.

I agree with O'Bryan, A.J.A. That these applications should be disposed of in the manner he proposes.

Although it is now strictly unnecessary to do so, I wish to return to and say

something briefly about the topic which the Court raised with counsel at the outset of the hearing, namely, the manner in which criminal records are maintained by the court of trial.

We drew attention to an inconsistency between the sentence which the judge had pronounced in respect of the applicant Ahomana and the record of the sentence passed as formally recorded on the back of the presentment and the quadruplicate. This is not the first time upon which this Court has noted such inconsistencies and presumably it will not be the last. His Honour had pronounced, and it is clear intended to pass, a sentence of two years' imprisonment in respect of Count 4. It is, however, recorded in the documents to which we have referred as a sentence of four years. These documents constitute the "record" of the County Court.

The difficulty is that the sentence and judgment of the County Court has now "passed into record" and the limited power given to that court by s.104A of the Sentencing Act 1991 to amend or correct "clerical mistakes or errors" in its own record is now spent. This Court in Saxon[3] referred to the difficulties which this Court faces - in the event that it regards as regular and appropriate the sentence pronounced by the judge - of correcting clerical mistakes or errors arising from what are clearly accidental slips or omissions appearing in the record of the sentencing court. It also pointed out the significance which attaches to the accurate recording of the sentences passed both on the back of the presentment and the quadruplicate and the need for the judge pronouncing sentence to ensure that these records accurately reflect the sentences which have been passed. Both the prisoner and the public have an interest in the accuracy of the record because it is that record which will be relied upon by those who have control of the prisoner during the service of his sentence. On one view of the sentences recorded against Ahomana, it might be thought that the total effective sentence of five years is in error and that it ought to be seven years. It is obvious that this is not what the judge pronounced or intended.

Following the judgment of this Court in Saxon the legislature amended the Sentencing Act 1991 by introducing s.104A (see s.26 of Act No. 48 of 1997). The section was intended to give to the court which passed sentence the power to amend (inter alia) clerical mistakes or errors arising from accidental slips or omissions appearing in the record of sentence, and to do so on its own initiative. But the power conferred is one which is to be exercised only by the court which pronounced the sentence and is a power to be exercised within the limited period prescribed in the section. In material respects it would seem that the power conferred by s.104A is narrower than the inherent power which exists in a court of record to correct clerical mistakes or errors arising from accidental slips or omissions to be found in its orders or judgments. The extent of that inherent power is declared in Rule 1.14 of the Supreme Court (Criminal Procedure) Rules 1998, and is a power preserved by s.104A(6) of the Sentencing Act 1991.

It would, in my view, have been desirable if the power given by s.104A had been extended to the Court of Appeal, when entertaining an application for leave to appeal, to similarly amend, or at least to direct amendments of, clerical mistakes and accidental errors demonstrated to appear in the record of the trial court, rather than rely upon the trial court of its own motion in the exercise of its undoubted inherent power, to amend its own record. In the absence of such a power in the Court of Appeal there is a danger that the records will go unamended.

The problems to which I have adverted will not arise in this appeal because in the events which have happened we consider that a different sentence ought to have been passed on the applicant Ahomana. That being so, we are empowered by s.568(4) of the Crimes Act 1958 to quash the sentences passed below and substitute the sentences which we think ought to have been passed. Thus the record of the sentences in the County Court will be bypassed by the orders which this Court will make. That, however, does not render any the less pertinent the comments which I have previously made.

87 As I have said, I agree with O'Bryan, A.J.A. that the applications for leave to appeal against sentence made by Ahomana, Culph and Soakai should be allowed and that their appeals should be treated as having been instituted and heard instanter; and that those appeals should also be allowed.

I also agree, for the reasons which his Honour has given, that the sentences imposed below on those appellants should be quashed and that, in lieu thereof, the sentences O'Bryan, A.J.A. proposes should be imposed.

I further agree with his Honour that the application for leave to appeal by Timoteo should be dismissed.

I agree for the reasons advanced by O'Bryan, A.J.A. that the matter should be disposed of in the fashion that he has proposed.

The formal orders of this Court will be as follows:

In respect of the application by Ahomana the application for leave to appeal against sentence is allowed; the appeal is treated as having been instituted and heard instanter.

The sentences and orders imposed and made in the County Court, save for the orders for the provision of a blood sample and the orders for forfeiture of property, are quashed; and in lieu thereof this Court imposes the following

We direct that the one year sentence imposed on Count 2, and one year of the sentence imposed on Count 4 be served cumulatively upon each other and upon the sentence imposed on Count 1.

The total effective sentence will therefore be one of four years.

We direct that Ahomana serve two years of that sentence before becoming eligible for parole.

Pursuant to s.18(1) of the Sentencing Act 1991, we declare a period of 557 days be reckoned as time already served by Ahomana under the sentences imposed, including time served between the date of sentence and today's date, and we further direct that the declaration and its detailed be noted in the records of the Court.

In respect of the application of John Soakai the application for leave to appeal against sentence is allowed; the appeal is treated as having been instituted and heard instanter.

The sentences and orders imposed by the County Court, save for the orders for the provision of a blood sample and orders for forfeiture of property, are quashed; and in lieu thereof this Court imposes the following sentences:

We direct that six months of the sentence imposed upon Count 5 and six months of the sentence imposed upon Count 6 be served cumulatively upon each other and upon the sentence imposed on Count 4.

The total effective sentence will therefore be one of three years' imprisonment.

We direct that Soakai serve a minimum period of 18 months before being eligible for parole.

Pursuant to s.18(1) of the Sentencing Act 1991 we declare that a period of 533 days be reckoned as time already served by Soakai pursuant to the sentence imposed, including the time between the date of sentence and 17 August 2001 when Soakai was released on parole, and we direct that the fact of this declaration and its details be noted in the records of the Court.

In the application of Haydyn Culph the application for leave to appeal against sentence is allowed; the appeal is treated as having been instituted and heard instanter.

The sentences and orders imposed and made by the County Court, save for the orders for the provision of a blood sample and the orders for forfeiture of property, are quashed. In lieu thereof the Court imposes the following sentences:

We direct that the sentence of three months imposed count upon Count 3, six months of the sentence imposed upon Count 5, and 6 months of the sentence imposed upon Count 6 be served cumulatively upon each other and upon the sentence of two years imposed on Count 4.

The total effective sentence will therefore be one of three years and three months.

We order that Culph serve 21 months of that sentence before becoming eligible for parole.

Pursuant to s.18(1) of the Sentencing Act 1991 we declare that a period of 557 days be reckoned as time already served in custody pursuant to the sentences imposed; and we direct that the fact of that declaration and its details be noted in the records of the Court.

In respect of the application of Frederick Timoteo, the application for leave to appeal against sentence is dismissed. Nevertheless, we note that the applicant has already served 297days in custody pursuant to the sentence imposed by the County Court.

[2] [2001] VSCA 145, 22 August 2001.

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