VAEILA, Jonathon v R [2010] NSWCCA 113 | Case summary

(ii) that the sentencing judge erred by taking into account conduct that constituted a more serious offence in breach of the principles in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Facts 6 The applicant pleaded guilty before the District Court and a document of agreed facts was tendered as part of Exhibit A in the sentencing proceedings. Those agreed facts establish the following situation. 7 Mr Vaeila, with two other males, caught a train from Mt Druitt to St Marys at or shortly after 1.30am on Saturday 5 January 2008. At about 2.00am on that date, the victim arrived at St Marys Railway Station on his pushbike. He travelled to the paved area outside the station and alongside Station Street. After he travelled to that area, he saw one of the co-offenders. Standing next to the first-sighted offender was the other co-offender and standing nearby, at a payphone, was Mr Vaeila. 8 One of the co-offenders said to the victim "Have you got any money?", to which the victim replied that he only had $10, which wasn't his money. He told the offender that if he had money, he would give it to him. The same offender replied that he wanted $5 of the $10. 9 While this conversation was occurring, Mr Vaeila approached the victim and asked if he wanted a fight to which he replied in the negative. The victim took out his wallet and removed $10 and said to the offenders "This is all I've got". One of Mr Vaeila's co-offenders said: "Take his bike!" to which Mr Vaeila commented "Yeah, get his bike." 10 The victim demounted from his bike and put it on the ground, at which time the three offenders walked towards him. The victim backed away. The three offenders continued to walk towards the victim and began to throw punches at him, to his head, ribs and back. The victim tried to defend himself by holding his hands up around his head, and as the punches continued, he struck-out, punching one of the co-offenders. 11 One of the punches knocked the victim to the ground and the three offenders then started to kick him, while he was on the ground. The victim held up his hand over his head trying to protect himself and started yelling at them that he had had enough. He told them just to take the money. 12 At about this time, local police patrolling the area in a police car came upon the victim and the three offenders. The three offenders including Mr Vaeila ran from the scene. The victim informed the police as to what had happened and the police drove off following the offenders. The victim mounted his bike, and rode off in an attempt to cut the offenders off through a nearby car park. 13 As the offenders ran, Mr Vaeila separated from the other two and was apprehended by the victim. The police arrived and placed Mr Vaeila under arrest. He was taken to the police station and participated in a recorded interview. 14 As a result of the incident, the victim had a laceration about 2cm long across his right eyebrow, scratches around his neck, grazes to both his upper arms and grazes to his back. He had a lump on the left side of his head above his ear and pain around his jaw and neck. Remarks on Sentence 15 His Honour recited the facts as set out in the agreed facts document, after having determined that Mr Vaeila was entitled to a discount of 15% for the plea of guilty. He recited the maximum penalty and that Mr Vaeila was on bail at the time that the offence was committed. His Honour remarked, with which remark I would agree, that people, a reference to the victim and others in like circumstances, should be able to go about their business without being subject to attack. The judge questioned the purpose of the offenders in roaming the streets and described the attack upon the victim as "nasty". His Honour said the matter is one to be taken "very seriously". 16 Notwithstanding that description, the Judge determined that Mr Vaeila's "moral culpability is somewhat less than mid-range". 17 In dealing with the objective nature of the offence in question, his Honour said: "I do not think we could say [the offence involved] gratuitous cruelty, although I must say kicking a person when he his down is coming close to gratuitous cruelty. … I do not accept that it was planned and organised and in some respects he alleged it was provoked by the victim. I do not accept that.

I mean robbery is a crime by definition. It involves both an assault and taking property. Well in fact what he is charged with was not robbery it was demand property with force in company which is a slightly lesser offence, it is a lesser offence but it was demanding money with force. The demand of course is what was involved with the taking of the $10 and the bike. I do not think, in the end, the bike was taken." 18 His Honour dealt with the subjective factors relating to Mr Vaeila, including that he was on bail at the time that this offence was committed. His Honour referred to his previous firearm offence, his childhood and his drinking from an early age. His Honour also referred to the sporadic nature of his employment, but took the employment into account in his favour and also took into account to his benefit, his talent and activities in rugby league. His Honour found special circumstances, including, that this would be the first time spent in gaol and that the chances of rehabilitation are fairly good. And the commencement point, before a discount for plea of guilty, was 5 years. Ground 1: Breach of the principle in De Simoni 19 The submission on behalf of Mr Vaeila in relation to Ground 1 depends for its arguability on the proper construction of the remarks on sentence that have been quoted and recited above. The ground depends upon the proposition that his Honour the sentencing judge took into account and sentenced on the basis that the offence before the Court was one for robbery. 20 The underlying premise for this argument fails. His Honour the sentencing judge referred to robbery as a crime involving both assault and taking property and thereafter qualified that with which the sentencing court was dealing by expressly noting that it was not robbery but was "demand property with force in company" and noting that it was a lesser offence. His Honour remarked that "the demand" was what was involved "with the taking of the $10 and the bike". His Honour's reference was, after the initial comment in relation to robbery, consistent only with the proposition that his Honour was sentencing for the demand that was made with force and in company. The submission that was the basis for this ground of appeal is not available and seeks not only to rely upon an infelicitous comment, but to misconstrue the comment in a way that is inconsistent with its obvious intent. 21 In my view this ground of appeal fails at the outset. Ground 2: Manifest excess 22 This Court has, on a number of occasions, made clear that one of the fundamental features of the criminal justice system is to regulate the protection of people, going about their ordinary business, from being attacked or set upon. These principles are fundamental to any system that seeks to regulate society and were summarised by Gleeson CJ in R v Ranse (Court of Criminal Appeal, 8 August 1994, unreported) in which his Honour said, at page 8: "One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others." 23 The foregoing comments are rendered even more applicable in circumstances where attacks are made on people who are using, or waiting to use, public transport. Such persons are necessarily in an even more vulnerable position and require protection: see R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499 at [6] and the cases cited therein. 24 The offence under s 99(2) of the Crimes Act encompasses both demanding by force and threats with menaces. Of those two situations, the demanding by force is the more serious and must be treated more seriously by the Court. The submissions on behalf of Mr Vaeila refer to the JIRS data relating to offences under s 99(2) of the Crimes Act and to the fact that 61% of offenders were sentenced to full-time imprisonment. No issue is taken, in these proceedings, that the appropriate sentence was one of full-time custody. Of those sentenced to full-time imprisonment, the statistics reveal that no offender received a non-consecutive total term greater than 3 years and only one attracted a non-parole period greater than 2 years. 31% of offenders attracted a non-parole period of 18 months. 25 If, as found by the sentencing judge, the offence in question was below mid-range in seriousness, then, on the statistics that are before the Court, the sentence imposed would be outside the range of sentences thus far imposed. However, statistics are a guide to the range that has been imposed; those statistics do not define the range available to a sentencing judge. That range is defined by the maximum sentence and the gravity of the offence. 26 However, in considering whether there is manifest excess in the sentence imposed, or in considering whether a lesser sentence is warranted pursuant to the terms of s 6(3) of the Criminal Appeal Act 1912, it is necessary to determine whether the sentencing judge has accurately depicted the criminality involved in the offence. 27 In my view, the sentencing judge has significantly underestimated the severity of the offence in question. Not only is it an offence which involves the actual use of force (as distinct from threats with menaces), it is an offence which involved the application of force by three persons, each punching and kicking the victim, even after the victim has given up on the demand for the money and his bike. Indeed, it seems, that the only reason that the three offenders desisted, from their criminal conduct, was the arrival of the police. 28 Were I to categorise the offence in question, I would place it above mid-range in seriousness and I do not consider that the sentence imposed was manifestly excessive, or excessive at all. 29 Ultimately, the test that must be satisfied in order to succeed on a ground of manifest excess, is that the Court is satisfied that the sentence imposed, on the facts as proved, is a sentence that is beyond the range available. On the facts that have been agreed and/or proved, this sentence is not beyond the available range. 30 Further, I am not persuaded, as I must be, that the provisions of s 6(3) of the Criminal Appeal Act have been satisfied. In other words, I do not consider that a less severe sentence is warranted. As earlier stated, people travelling on public transport, or awaiting public transport, are particularly vulnerable to attacks by a group of people, and the courts must be vigilant to ensure that fundamental protections, being the aspects of civilised, regulated society, are maintained. 31 I propose that the Court make the following orders:

VAEILA, Jonathon v R

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