Taupati v The Queen [2017] VSCA 106

1 The applicant was convicted at trial of the common law offence of affray and causing serious injury recklessly contrary to s 17 of the Crimes Act 1958. His trial proceeded throughout March and into early April of 2014. On the 10th day of April he absconded. The following day a verdict of guilty was returned by the jury. He was sentenced by the trial judge in his absence on 29 April 2014 as follows:

Affray [common law] (s 320 Crimes Act 1958)

Cause serious injury recklessly (s 17 Crimes Act 1958)

2 The applicant now seeks leave to appeal his sentence on three grounds:

1. The sentencing judge erred in her decision to sentence the applicant in his absence in circumstances where she was unable to have proper regard to specific deterrence and prospects for rehabilitation and where both were relevant to the sentencing task.
2. The sentencing judge, without providing reasons, erred in setting a non-parole period that was 78 per cent of the total effective sentence. In light of the gravity of the offending, parity, and the objective prospects of rehabilitation it was more than the minimum period the applicant should have been imprisoned to serve the purposes of sentencing.
3. The individual sentences, the total sentence resulting from the orders of cumulation, along with the non-parole period imposed on the applicant are each manifestly excessive having regard to the objective seriousness of the applicant's particular offending, parity, the applicant's limited priors and current sentencing practices.

3 Under ground one, the applicant orally submitted five points in support of the contention that the sentencing judge erred in her decision to proceed to sentence in the absence of the offender. First, delaying the proceeding until the applicant could be found would have been fairer to the applicant. Secondly, the judge was obliged to make further enquiries as to the applicant's whereabouts and such enquiries would have been straightforward. Thirdly, choosing to proceed meant that the judge imposed a sentence without instruction on the personal circumstances of the offender and which was therefore unjust. Fourthly, the applicant's case can be distinguished from other cases where the court has exercised its discretion to proceed to sentence without the offender, such as Mokbel v The Queen[1] and R v Jones.[2] Lastly, the judge erred in finding that the applicant had waived his right to a just sentence by absconding. Overall, the applicant submitted that the crux of the matter was that the discretion to proceed to sentence in absentia should be used 'sparingly'.[3]

4 The proceedings involved the applicant and seven co-accused. Six of the eight co-accused pleaded guilty to charges of affray, with one of those co-accused also pleading guilty to a charge of recklessly causing serious injury. The sentencing of those offenders was adjourned until the completion of the trial of the applicant and one other co-accused (Sim Atelemo Tuiafitu or 'Sim') who had pleaded not guilty to affray, recklessly causing serious injury and intentionally causing serious injury.

5 The offending conduct arose out of a family dispute. On the evening of 2 October 2012, the applicant, in the company of the seven co-accused, travelled in two cars to the home of the victims armed with knives and a baseball bat. The three victims were then kicked, punched and stabbed.

6 The trial of the applicant and his co-accused lasted for 20 days in March and April 2014. The applicant and Sim were charged in a joint indictment with affray, intentionally causing serious injury and recklessly causing serious injury. Their offending related to an attack on a man named Soape who was dragged into the centre of the road and kicked and punched by five of the male members of the group. Sim later confronted Soape with a knife and stabbed him while the applicant chased away Soape's brother Sosuia who tried to stop Sim.

7 On 10 April 2014, during the second day of jury deliberations, the applicant failed to appear. On 11 April 2014, the jury handed down its verdict, convicting him in his absence of affray and recklessly causing serious injury. He was convicted of affray on the basis that he was a participant in the punching and kicking. Although he was armed with a baseball bat, it was not proven that he struck anyone with it. Rather, he was convicted of recklessly causing serious injury on the basis that he intentionally assisted and encouraged his co-accused.[4]

8 All eight occupants of the two cars either pleaded guilty to or were convicted of offences relating to the events of that night. With the exception of one offender who had already been convicted and sentenced to a fine, all co-offenders came to be sentenced before Judge Hampel at the conclusion of the trial. The pleas for the seven co-offenders were heard on 15 and 16 April 2014. Sentences were imposed for the seven co-offenders on 29 April 2014. The applicant was the only co-offender absent from the plea hearings and the sentence. At the date of sentence, it had been 19 days since he had first failed to appear.

9 One of the applicant's co-accused was his partner Suliana Atelemo. At the time, he had a son and two step-daughters with Suliana. She was present throughout the plea hearings and the sentencing. They have since had another son together.

10 In his affidavit, the applicant deposed that although he did not attend court on 10 April 2014, he did not leave Victoria until later that week. He said that he absconded to Queensland for a number of reasons. He thought the judge was being unfair, that he was stressed about not being able to provide for his family if he was in jail, and that he was not prepared to go to prison at the end of the trial.

11 While in Queensland he lived with his brother and maintained contact with Suliana. He found out that he had been convicted and sentenced through Suliana.

12 The applicant was arrested in Queensland and extradited to Victoria on 18 September 2015. He was brought before Judge Hampel on 19 September 2015 and has been serving his sentence since then. He was absent for more than 17 months.

The judge's consideration of the applicant's absence

13 On 10 April 2014, the applicant failed to appear in answer to his bail. At this time the jury had commenced their deliberations. Counsel for the applicant indicated that he had tried to call his client, unsuccessfully and that he had no explanation for his client's absence. The Crown indicated that it had spoken to the informant who said that he would do a drive-by, but otherwise the Crown was minded to ask for a warrant. Her Honour suggested a short adjournment for the parties to make enquiries and stated that if no information was uncovered as a result of those enquiries, she would hear submissions on an application for a warrant. After nothing eventuated from further enquiries, and with no opposition from the applicant's counsel, the judge issued a warrant for the arrest of the applicant due to his failure to appear on bail. The option for the applicant to be brought before a bail justice was struck out, thereby ensuring that upon his arrest he would be brought before the judge.

14 On 11 April 2014, the Crown indicated that enquiries were ongoing but were yet to bear any fruit. In response to submissions as to how the jury should be directed in regard to his absence, her Honour stated that at that moment all she had were assertions from the Bar table that he had not been able to be found by either his counsel or police. Her Honour stated that she did not have evidence as to why that was so.

15 The jury returned its verdict on 11 April 2014. At this time, counsel for the applicant indicated that he considered his brief had come to an end and that he did not have instructions for a plea. The judge asked counsel whether he might make submissions as to whether she should proceed to sentence. That invitation was not taken up by defence counsel.

16 At the plea hearing for the seven co-accused on 15 April 2014, the applicant's counsel appeared as a courtesy to the court, and formally withdrew as the applicant's counsel.

17 On day two of the plea hearings, the judge heard submissions from the Crown in regard to the applicant. The Crown submitted that the judge should not take the applicant's absence into account as an aggravating factor but submitted that based on his counsel's inability to contact him, the police enquiries that had been made and his failure to answer his bail, the judge should conclude that the applicant had chosen to remove himself from the trial. It was submitted that the judge could give weight to denunciation and general deterrence, but could not make findings about prospects of rehabilitation or specific deterrence. Her Honour indicated that his absence must be treated as 'an election not to put such material before the court' and indicated that she would adopt the course that had been submitted.

18 The Crown informed the judge that the steps being taken to locate the applicant would be ongoing. Her Honour stated that, if the applicant was found before he was due to be sentenced with his co-offenders on 29 April 2014, she would allow him the opportunity to make plea submissions. If he presented himself before 29 April 2014, she contemplated that she may postpone his sentencing so that he could prepare submissions. The judge referred to the presence of the applicant's partner, a co-accused, who was the mother of the applicant's children and was present in court. Her Honour stated that she had deliberately explained the course she might follow in detail so that if his partner had contact with the applicant, she could let him know that if he was found she would not proceed to sentence him and that he would be given the opportunity to reconnect with his existing legal advisers or new ones and place any submissions that he wanted to before the court before any further steps were taken.

19 At the time of sentence, her Honour noted that the applicant's counsel had 'remained until verdict but declined to remain or present submissions for sentencing purposes'.[5] The judge stated that she would sentence him on a factual basis consistent with the jury's verdict and relied on prosecution submissions and her own analysis of the case 'without the benefit of defence submissions'.[6] In her sentencing remarks her Honour referred to the course followed in Mokbel v The Queen[7] and said:

Although Junior Taupati has not been present since the start of the second day of jury deliberations, and despite the absence or withdrawal of his legal advisers at the sentencing stage of the proceedings, I am satisfied that it is appropriate to proceed to sentence him, despite the fact that no submissions in mitigation were put to me, and no submissions about general sentencing principles, or fact findings based on the jury verdict, were put before me by his legal advisers.[8]

The waiver of the right to be present and the discretion to proceed to sentence in absentia

20 It has been long established that a trial should not proceed without an accused unless the accused waives his or her right to be present and the court chooses to exercise its discretion to proceed.[9]

21 In Lawrence v The King,[10] Lord Atkin emphasised the 'essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused' which includes the right to be present during sentencing.[11] In that case, the Privy Council found the sentence to be invalid because, among other things, the sentence had been revised in the judge's chambers at the request of the Solicitor-General and in the absence of the accused.

22 The applicant referred to R v Jones.[12] The accused had absconded early in the trial after a Crown witness had given persuasive evidence against him. Lander J said:

It may be assumed that the appellant believed that the evidence indicated his prospects of acquittal were remote. The learned trial judge was entitled to assume that the appellant had simply absconded in contravention of his bail and was not prepared to remain in the charge of the jury.[13]

[A] court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person, during the currency of the trial, for example, escapes from custody; or where the accused person unlawfully absents himself or herself in breach of a bail agreement; or where, without any good excuse or explanation, the person absents himself or herself from the proceedings.

In any of those cases, if the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused's own waiver, then the court may proceed with the accused's trial.[14]

24 The Court in Jones held that there had been no miscarriage of justice in continuing the trial in the absence of the accused.[15] The applicant relies upon the further observation of Lander J that '[a]ny discretion to proceed in the absence of the accused ... should be exercised sparingly'.[16]

25 Absconding on bail is a prima facie waiver of the right to be present at trial. In R v McHardie[17] the New South Wales Court of Criminal Appeal held that 'on the weight of judicial authority, absconding on bail during a trial amounts to a waiver by the accused of his right to be present at his trial'.[18]

26 In Mokbel[19] this Court it was said that the 'essential principle' stated in Lawrence requiring the accused's presence applies as does the principle enunciated in Jones that the right may be waived.[20] Therefore, where the accused has waived his right to the essential principle, the court will not be in error if it exercises its discretion to proceed. In R v Bonacci,[21] Kaye JA stated that the right to be present is not an inflexible rule. It admits of exceptions such as where an accused person has deliberately absented himself by absconding on bail during the trial. Such conduct has been considered, in an appropriate case, to constitute a waiver by the accused of his, or her, right to be present at the trial.[22]

27 The applicant submits that by proceeding to sentence him, the judge failed to exercise the power 'sparingly' notwithstanding that he absented himself from the sentencing process. He submits that the availability of more practical alternatives to proceeding to sentence in absentia that were not pursued serves to demonstrate that the decision to proceed was in error. In his submission, these alternatives included making enquiries as to the steps taken to locate the applicant and ordering a brief adjournment before proceeding to sentence, or adjourning the plea hearing sine die until the applicant could be brought back before her Honour.

28 It is far from clear that the power to proceed to sentence where the prisoner has absconded should be exercised 'sparingly'. The reluctance to exercise the power to proceed in the absence of the accused often arises in the context of an accused who absconds prior to the empanelment of a jury or at the start of a trial. But where the accused waives his right to be present once a trial is well underway or at its end, different considerations arise. It should not then be assumed that the power to continue the trial or to proceed to sentence will be exercised sparingly. As this Court said in Mokbel in response to a submission that it must always be possible to pass sentence in the presence of the prisoner:

Just as the 'essential principle' enunciated by Lord Atkin, requiring the accused's presence, applies with equal force to trial and to sentencing, so does the qualification to the principle stated by Lander J. The applicant waived his right to be present for the concluding part of his trial and, likewise, waived his right to be present at sentence. There was no error on his Honour's part in proceeding to sentence the applicant in his absence.[23]

29 It is clear from the transcript of proceedings that the judge, being aware that the applicant had absented himself in breach of a bail agreement and that he was absent without any good excuse or explanation, was satisfied that he had waived his right to be present. Her Honour issued a warrant for his arrest, tasked both counsel with making enquiries as to his whereabouts during brief adjournments and gave strong indications to his family that she would accept sentencing submissions as long as he presented himself before the day of sentencing. Her Honour's assumptions that the applicant would be made aware of proceedings were well-founded. Counsel for the applicant submitted during oral argument on the appeal that his family had known where he was at the time. Furthermore the applicant stated in his affidavit that he was told by his partner, who was then in court, of his conviction and sentence.

30 The extent of enquiries undertaken by her Honour were in our view quite sufficient. Once satisfied that counsel and the police were making enquiries, it was not appropriate to require the applicant's family present at court to give evidence as to their knowledge as to his whereabouts. Further, while counsel was still acting on behalf of the applicant, no submissions were made as to whether to proceed in the applicant's absence, despite her Honour's invitation to make such submissions. We are satisfied that the appropriate enquiries as to the applicant's location were made and that, were he to be found, he would have been brought back before her Honour. Although her Honour could not have known at the time that the applicant would remain at large for more than 17 months, subsequent events have only served to demonstrate that there would have been an inordinate delay had the sentencing process been adjourned.

31 The applicant also submits that the exercise of the discretion to proceed was unfair in that once the warrant was executed it was possible that he would enter the prison system without being made aware of his rights to appeal. That obviously did not occur in this case, and the risk of that happening was ameliorated by her Honour's amendment of the warrant to require him to be brought before her upon his arrest.

32 By proceeding to sentence in his absence, the applicant submits that the sentencing judge imposed an unjust sentence since she could not take into account substantial personal factors in mitigation. We discern no error in her Honour's conclusion that the applicant elected not to put such matters before the court by absconding from the trial. That said, her Honour attempted to take as many personal factors as could be presented to her into consideration, including the applicant's age, New Zealand citizenship, prior minor convictions, his relationship with the co-accused and his being a parent to young children.[24]

33 The question of whether it is appropriate to proceed with a plea hearing on sentence in the absence of the offender who has absconded will vary according to the circumstances of the case. But this case had particular characteristics that favoured finality. The judge had sat through a lengthy and factually complex trial which involved multiple offenders (albeit most had pleaded guilty to the charges they faced). All of the co-offenders were awaiting a sentence hearing. They included the applicant's partner. Considerations of parity in the sentences to be imposed upon other offenders, including Sim, would arise. Her Honour had to balance these factors with the competing consideration that matters personal to the absent offender would not be placed before the Court. The public interest in completion of the sentencing process, which assumed particular importance in Mokbel[25] also remained a relevant consideration.

34 The judge, having correctly concluded that the applicant had waived his right to be present by deliberately absenting himself by absconding on bail, appropriately exercised her discretion to proceed to sentencing. The applicant has not established that the exercise of her Honour's discretion was vitiated by error as required by House v The King.[26] It is evident that her Honour approached the issue of whether she should proceed and if so, how to approach the sentencing task, with considerable circumspection. The applicant has not demonstrated that any additional prejudice was placed on the applicant, 'apart from the prejudice arising from his failure to attend and to make submissions in response to the charges against him'.[27]

35 Under ground two, the applicant submits that because the sentencing judge was not in a position to make a finding on rehabilitation, a non-parole period that represents 78 per cent of the total effective sentence is excessive. In particular, the applicant submits that non-parole periods that represent such a high proportion of the total effective sentence are usually reserved for cases where a negative finding has been made in relation to the offender's prospects for rehabilitation.

36 Like the head sentence, the non-parole period must reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. The purpose of parole is to provide for mitigation when appropriate of the custodial portion of the sentence in favour of rehabilitation by the grant of conditional freedom.[28] Strong prospects of rehabilitation generally increase the suitability of a long parole period and reduce the length of time during which an offender should be removed from the community.[29] These underlying principles have resulted in a usual or common range of minimum sentences, expressed as a proportion of the head sentence. Whilst there is in law no correct ratio, in the majority of cases the proportion is between 60 per cent and 75 per cent, but both longer and shorter periods are found. In their joint reasons in Kumova v The Queen[30] Redlich and Osborn JJA emphasised that these principles provide a level of constraint as to the range of minimum sentences that are open and 'serve to confine the choice as to the proportion of the head sentence that must be served.'[31] Consequently where a non-parole period is imposed which is unusual by comparison with other cases, reasons should generally be given unless it is obvious why a period outside the usual range was selected.[32] The respondent submits that the reason is apparent.

37 At the plea hearing, her Honour received submissions from the prosecutor as to the weight to be given to particular sentencing principles. Her Honour said that because of the applicant's disappearance, she would make no finding as to his prospects of rehabilitation or ascribe any particular weight to specific deterrence. In her sentencing remarks, her Honour said that while she considered it appropriate to fix a non-parole period, she could make no finding as to his prospects for rehabilitation and appreciated that she was 'working to a great extent in a vacuum'.[33]

38 Her Honour found that the primary sentencing purposes to be achieved by the total effective sentence and the non-parole period were denunciation, just punishment, and general deterrence.[34] As she was unable to assess the applicant's prospects of rehabilitation it was well open to her Honour to conclude that a non-parole period of three years and six months' duration was the minimum term that the applicant should be required to serve given the gravity of the offending. We do not accept the applicant's submissions that the non-parole period, representing more than 75 per cent of the head sentence, was a sentence for more than the minimum period necessary to satisfy the purposes of sentencing or that such a sentence could only have been imposed if a negative finding was made in relation to an offender's prospects of rehabilitation. It was the absence of material that permitted any positive finding as to the prospects of rehabilitation that informed the extent of the conditional freedom that should be granted.

Manifest excess and the gravity of the applicant's offending

39 The maximum penalty for the common law offence of affray is five years' imprisonment and the maximum penalty for recklessly causing serious injury is 15 years' imprisonment.

40 Little was said in oral argument in furtherance of the contention that the sentence was beyond the range that was available. Although of limited assistance, the Sentencing Advisory Council's online statistical tool indicates that between July 2010 and June 2015, all sentences of imprisonment imposed on the charge of affray were less than three years, with 43.8 per cent less than two years but more than one year, and 50 per cent less than one year. For the charge of recklessly causing serious injury over the same period, the maximum sentence of imprisonment imposed was six years and six months. Only 15 per cent of offenders who received a term of imprisonment were sentenced to a term of imprisonment of more than four years for a charge of recklessly causing serious injury.

41 Her Honour found that the jury must have been satisfied that the applicant was aware that Sim was intent on stabbing the victim and contemplating the probability that serious injury might result, intentionally encouraged and assisted him by chasing Sosuia away, thereby preventing him from going to the victim's aid.[35] The judge thus concluded that the applicant's conduct in assisting Sim in the manner he did made 'his culpability high, and ranks the offending as a serious example of its type'.[36] With reference to the affray, her Honour characterised the offending as follows:

It is particularly egregious and cowardly to resort to group violence, attacking and outnumbering your victims. And clearly for those who went armed, that adds again to the seriousness of the offending.[37]

42 In light of the gravity of the offending and on the information that was available to the judge, it has not been demonstrated that the sentences imposed were beyond a sound exercise of the sentencing discretion.

43 We would grant leave to appeal but for the reasons given, none of the grounds have been made out.

[1] (2010) 30 VR 115 ('Mokbel').

[2] [1998] SASC 7021; (1998) 72 SASR 281 ('Jones').

[3] Ibid 295; Mokbel (2010) 30 VR 115, 125 [41].

[4] DPP v Atelemo & Ors [2014] VCC 658 [24], [42] ('Reasons').

[7] Mokbel (2010) 30 VR 115.

[9] R v Abrahams [1895] VicLawRp 73.

[10] Lawrence v The King [1933] AC 699.

[12] Jones [1998] SASC 7021; (1998) 72 SASR 281.

[15] Ibid 297 (Lander J) (Prior and Wicks JJ agreeing).

[17] R v McHardie (1983) 2 NSWLR 733.

[19] Mokbel (2010) 30 VR 115, 124-5 [40]-[42].

[21] R v Bonacci [2015] VSC 121 ('Bonacci').

[23] Mokbel (2010) 30 VR 115, 125 [42].

[25] (2010) 30 VR 115.

[26] [1936] HCA 40; (1936) 55 CLR 499, 505.

[27] Bonacci [2015] VSC 121 [62].

[28] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525.

[29] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 492 [23].

[30] (2012) 37 VR 538.

[32] R v Detanamo [2007] VSCA 160; Mak v The Queen [2011] VSCA 5 [27]; R v JZ [1998] VSCA 32; (1998) 7 VR 693, 700 [22].