REGINA v KAMA [2000] NSWCCA 23

Reported Decision : [2000] 110 A Crim R 47

New South Wales Court of Criminal Appeal

CITATION : REGINA v KAMA [2000] NSWCCA 23 FILE NUMBER(S) : CCA 60479/99 HEARING DATE(S) : 14 February 2000 JUDGMENT DATE : 14 February 2000

PARTIES : Regina v Torrence KAMA JUDGMENT OF : Spigelman CJ at 1; Hulme J at 21; Smart AJ at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0552 LOWER COURT JUDICIAL Williams DCJ OFFICER :

COUNSEL : M C Marien (Crown) A Webb (Respondent) SOLICITORS : S E O'Connor (Crown) T A Murphy (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - maliciously inflicting grievous bodily harm - manifestly inadequate sentence - double jeopardy - Criminal Appeal Act 1912, s5D - Crimes Act 1900, s35 Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes Act 1900 CASES CITED: R v Gordon (1994) 71 A Crim R 459 DECISION : Crown appeal allowed, sentence quashed and new sentence substituted. Respondent sentenced to a minimum term of two years penal servitude to be served by periodic detention commencing on 20 August 1999, with an additional term of one year periodic detention commencing on 20 August 2001.

IN THE COURT OF CRIMINAL APPEAL

60479/99

SPIGELMAN CJ HULME J SMART AJ

Monday 14 February 2000 REGINA v Torrence KAMA JUDGMENT 1 SPIGELMAN CJ: This is a Crown appeal pursuant to s5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour Judge Williams at the Sydney District Court on 9 August 1999. On 12 May 1999, the Respondent had pleaded guilty to one count under s35 of the Crimes Act 1900 of maliciously inflicting grievous bodily harm to Shailendra (Tommy) Naidu (the victim). 2 The maximum penalty for an offence under s35 of the Crimes Act is penal servitude for seven years. The sentencing judge imposed a sentence of penal servitude for twenty-seven months, comprising a minimum term of nine months, to be served by way of periodic detention commencing on 20 August 1999 and expiring on 19 May 2000, with an additional term of eighteen months commencing on 20 May 2000, expiring on 19 November 2001. 3 The offence occurred on 23 February 1998 and was constituted by a vicious assault by the Respondent, then aged seventeen years and eight months, together with a co-offender, Livingstone Oloapu, then just under the age of sixteen. A third person was involved in the attack and acted as a lookout. 4 The evidence of an eye witness was accepted by the sentencing judge and was to the following effect: "Both of them were stomping Tommy with their feet and punching him with their fists. Tommy was on the ground and he looked like he was knocked unconscious. Both guys said something like, 'you keep out of this'. They were hitting Tommy about the head and he was bleeding a lot from the left side of his head. They were just hitting and stomping on Tommy, mostly on his head. They were really vicious, they hit and stomped on his head continuously many times." 5 In addition to this evidence, still photographs were available which confirmed some part of the eye witness's report in the sense that they showed the foot of the Respondent coming into contact with the head of the victim on a number of occasions. 6 The victim suffered severe head injuries and brain damage consistent with the evidence of a vicious attack. He was an inpatient at Royal Prince Alfred Hospital until 11 March 1998, noting that the offence occurred on 23 February 1998. On 11 March the victim was transferred to the Metropolitan Rehabilitation Private Hospital. The nature of his traumatic brain injury was identified in the evidence before his Honour. The victim underwent a rehabilitation programme and was discharged from the inpatient programme on 9 April 1998. His treating doctor indicated that the length of the period of post-traumatic amnesia was consistent with "an extremely severe brain injury". The medical opinion, which was accepted by the sentencing judge, was that the victim had a permanent brain injury which affected, and will affect, his memory and concentration. 7 As his Honour expressed it, this was "a vicious assault". The objective circumstances were extremely serious. The Respondent inflicted sustained and repeated acts of violence on the victim. The attack occurred in a public place and must have terrified members of the public who observed it. The attack was committed in company. There was a substantial disparity between the significant physical size of the Respondent and that of the victim. The attack continued even after the victim was totally defenseless and lying on the ground. The nature of the injuries were severe and, to a significant extent, permanent. 8 The Crown submits that the gravity of the objective circumstances of the attack and of its consequences are such that the sentence of periodic detention imposed by his Honour was on its face manifestly inadequate. The Crown, however, had greater difficulty pointing to any particular error in his Honour's reasons. Its submission are expressed in the following way: "(a) His Honour gave undue weight in the sentencing exercise to rehabilitation and to a finding of 'emotional immaturity' on the part of the respondent and (b) His Honour gave insufficient weight to the question of general and specific deterrence." 9 Nothing in his Honour's reasoning would suggest that the weight he gave to what was described as the Respondent's "emotional immaturity" was in any way "undue". Nor is there any aspect of his Honour's reasoning which suggests that the weight given to deterrence was in any way "insufficient". The only basis for a conclusion that the weight given was, respectively, either "undue" or "insufficient" was the size of the final sentence. The Crown asserts that it was so manifestly inadequate as to fall outside the permissible range for sentencing in the circumstances of this case. 10 The particularly relevant passage in his Honour's reasoning is as follows: "What I gather from the psychological report and the probation and parole report is that I have before me a person with an immature mind in a mature body. However, there is nothing in either report that suggests any overt or recognised psychological problems. What this tends to mean from a sentencing point of view is that I should lean more towards treating Mr Kama in accordance with his emotional maturity and thus more attention perhaps should be paid to questions of rehabilitation rather than general deterrence. That being said nonetheless the question of general deterrence and associated specific deterrence cannot be overlooked given the serious nature of this offence."