New South Wales Court of Criminal Appeal CITATION : R v Takau [2003] NSWCCA 181 HEARING DATE(S) : 20 June 2003 JUDGMENT DATE : 20 June 2003 JUDGMENT OF : Hodgson JA at 1, 37; Simpson J at 2; Greg James J at 36 DECISION : (i) leave to appeal granted; (ii) non-parole period varied from two years and nine months to two years, otherwise sentence is confirmed; (iii) the sentence and non-parole period to commence on 23 July 2002; (iv) the applicant to be eligible for release on parole on 22 July 2004; (v) recommend release on parole be on condition that there be supervison by the Probation and Parole Service for as long as it thinks appropriate. CATCHWORDS : application for leave to appeal against sentence - plea of guilty - parity - subjective circumstances - remarks on sentence - juvenile co-offender LEGISLATION CITED : Crimes (Setencing Procedure) Act 1999 (NSW), s44 Children's (Criminal Proceedings) Act 1997 (NSW), s33 CASES CITED : R v Colgan [1999] NSWCCA 292 R v Ellis and Carr [2002] NSWCCA 211 PARTIES : Crown - Respondent Gethsemane Mani Takau - Applicant FILE NUMBER(S) : CCA 60078/03 COUNSEL : DML Woodburne - Crown N Mikhaiel - Respondent SOLICITORS : SE O'Connor - Crown J Harris - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0536 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60078/03 HODGSON JA SIMPSON J GREG JAMES J Friday 20 June 2003 REGINA v Gethsemane Mani TAKAU Judgment 1 HODGSON JA: The court is in a position to give a decision now and I will ask Justice Simpson to give the first judgment. 2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 25 July 2002 following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. The maximum sentence applicable to the offence is imprisonment for seven years. The sentence imposed upon the applicant is one of imprisonment for a term of four years with a non-parole period of two years and nine months. 3 The offence committed by the applicant was particularly serious. Early in the evening of 20 October 2001 (a Saturday) he and a juvenile co-offender attended a birthday party at Millers Point in Sydney. At about 10.00pm an incident occurred that involved a conversation on a mobile phone, the details of which are not clear and probably not important, save that this appears to have been the circumstance that precipitated the later events. 4 Shortly after, another person, Sarvendra Thapa, arrived. The applicant accused him, in a hostile fashion, of having been the person on the telephone and the two men, together with others, engaged in a physical fight which was broken up by the host of the party, Ben Burgess. Thapa and two friends ran off, and made their way to the Town Hall and the Queen Victoria Building. 5 There, just before midnight, they encountered the applicant and Lee and another man. All three approached Thapa's group. At this time the applicant was punching himself in the chest and using violent, aggressive and angry language. The applicant began punching Thapa who fell to the ground. As he attempted to rise, the third man in the applicant's party kicked him in the head and he fell again. The applicant then stood over Thapa and began stomping on his face with the bottom of his shoe. He did this at least six or seven times, using considerable force. It was apparent that the juvenile, who was the only Caucasian in the applicant's group, also engaged in a considerable degree of violence towards Mr Thapa and this included kicking him in the head. (The reason for identifying the ethnic origin of the participants is to do with the determination of the roles played by each. The statements of the various witnesses describe actions by reference to their ethnic appearance.) 6 The incident was broken up by security guards who arrived at the scene. One of the three men claimed that Thapa had produced a knife, although there was no evidence that this was so. There was, in the evidence, some minimal suggestion that in the earlier scuffle, while the men were at Millers Point, the applicant had lost a bracelet. But this, too, was not the subject of any evidence. 7 Thapa was very seriously injured. He was taken to St Vincent's Hospital. He had no recollection of the attack itself. His last recollection of events prior to the attack was of a telephone call to Burgess while he, Thapa, was at the Queen Victoria Building. His next recollection was of regaining consciousness in the hospital. He was unconscious, in a coma, for almost a month. For the first week he was in intensive care and on life support. He was unable to breath unaided. He suffered brain injury that has affected his memory and balance and caused dizziness. A nerve near his left eye was affected, causing some cosmetic injury. For some time at least he required 24 hour care by his parents. 8 He suffered some short-term memory loss and was anticipated to require a lengthy time to recover. He was about 19 years of age at the time. His statement, which was before the sentencing judge, was made on 5 January 2002. There is no more recent statement as to the effect on him and no medical evidence more recent than a medical certificate dated 18 January 2002. subjective circumstances 9 The applicant was born in Samoa on 6 July 1979. He was 22 years of age at the date of the offence. A pre-sentence report from the Probation and Parole Service was provided to the sentencing judge. This disclosed that the applicant, who is the second eldest in a family of five brothers, came with his family to Australia at the age of four. He has a severely disabled younger brother whose needs take up the bulk of the family's time and energies. Alcohol abuse and gambling have been a feature of family life. He left school at 16 years of age, in year 10, and has held only one job of any duration, as a bar useful in a Sydney hotel for about a year from late 1988. At the time the report was written he was unemployed and in receipt of unemployment benefits. He was undertaking voluntary work with young people at a community centre near his home on several days a week. 10 The applicant told the reporting officer that he was substantially affected by alcohol at the time of the assault and believed that Mr Thapa had something to do with his bracelet being lost. He expressed his regret for Mr Thapa's injuries and said that he had, as a result of the offence, greatly reduced his alcohol intake. 11 There were some positive features in the report. In particular, the officer reported that there was some evidence that the applicant was maturing, beginning to reassess his past behaviour and play a more positive role in the community. 12 The applicant has some criminal history which had brought him into previous contact with the Probation and Parole Service. As a juvenile he was found guilty of carrying housebreaking implements and of breach of probation. As an adult he was convicted of possession of prohibited drugs, common assault, take and drive conveyance without consent, unlicensed driving, resisting a police officer in the execution of his duty and breach of a community service order. He had never served a full-time term of imprisonment. 13 The Probation and Parole officer reported that his response to supervision by that service had been poor, including instances of failure to report, both for ongoing supervision and the preparation of pre-sentence reports, and noted the breach of the Community Service Order. He was therefore assessed as unsuitable for a Community Service Order in respect of this offence. It was, however, noted that the applicant had successfully completed a period of home detention, which was imposed in consequence of the breach of the Community Service Order. 14 There was before the sentencing judge much more positive evidence than this. The applicant has formed a relationship with a young woman, Vanessa Carroll, who is a full-time student studying for a Master's degree in Occupational Therapy at Sydney University. She is in part-time work with special needs children and young adults with intellectual disabilities. Miss Carroll provided a letter for the benefit of the sentencing judge. She said that she and the applicant had been in a serious relationship for the past two years; she was aware of the applicant's background, difficult upbringing and family circumstances. She noted the needs of the applicant's youngest and disabled brother, and stated her opinion that the applicant was the primary carer of this brother. She described the applicant as a "kind hearted, genuine person who prides himself on honesty", who is "very caring and compassionate" as evidenced by the care he gives his siblings and the way he interacts with others. She considered the commission of the offence to be uncharacteristic as he is not, according to her, a naturally aggressive person. 15 This opinion was shared by a youth worker of the City of Sydney Council, Robert Gair, who found the applicant to "have a very likeable persona" and to be a person willing to provide assistance to others. He referred to a recent occasion on which the applicant had accompanied another youth worker and himself on a youth camp as peer support worker providing valuable support in managing a group of ten young people of varying ages. He believed the applicant to: "have the ability and motivation to become an active advocate for youth and a valued member of the community." 16 Even stronger in her support for the applicant was Ms Kate Munro, a youth worker at Millers Point. She wrote a letter dated 25 July 2002 directed to the presiding judge. She said that she had worked with the applicant for the past twelve months and found him "very remorseful" about the offence. She said that he does not wish to excuse his behaviour and readily acknowledges that he lost control. She said that about twelve months earlier the applicant had been himself the victim of a very serious assault that resulted in his admission to hospital and his being placed in intensive care for a period of time. The attackers were unknown to him and no charges were laid. She said that he did not seek counselling to help him deal with the effects of the incident as he had felt that he would be able to manage it himself. She said that the applicant now realises that his loss of control on the night of the assault was a direct result of his not having dealt with the trauma he suffered when attacked himself. 17 The applicant told Miss Munro that when he saw there were people around him and he felt they were going to attack him, he began to have flashbacks. Because he had been drinking he was not able to think rationally and reacted in an extreme manner. He had never felt this way before and frightened himself with his loss of control. 18 Miss Munro said that during the time she had known the applicant she had seen him mature a great deal and believed that the assault was one of the catalysts for his change. She said that prior to this episode the applicant described himself as having had problems with drugs and alcohol, gambling and temper control, had a very low opinion of himself and little motivation to do anything positive with his life. Miss Munro also referred to the applicant's relationship with Miss Carroll and described the beneficial effect of the relationship upon him. She also referred to the applicant's participation in the youth advisory committee and to his role as peer adviser on a camp. Presumably this is the same event as that to which Mr Gair referred. Miss Munro gave oral evidence which was to similar effect to that contained in her letter. the remarks on sentence 19 His Honour recounted the facts in some detail, quoting from the statements of various witnesses. He described the attack by the applicant as displaying "a frightening savagery". So seriously did his Honour view the applicant's conduct that he considered whether it fell into the worst category of an offence of its kind therefore justifying a penalty, if not at the maximum available sentence, then in the upper end of the range applicable. He decided against treating the offence as in the worst category. 20 In reaching this conclusion he had regard to the submissions put to him on the applicant's behalf to the effect that there was some evidence the applicant had considered himself to have been wronged by Mr Thapa in some way, and that Mr Thapa may have had a knife. He concluded that, if Mr Thapa did have a knife, he used it in an attempt to protect himself. He also accepted submissions that the applicant appeared remorseful and that his conduct was out of his general character. 21 He recounted, again in some detail, the subjective material that had been placed before him. He acknowledged the utilitarian value of the applicant's plea of guilty and took it also as some evidence of remorse. He concluded that, absent the plea of guilty, the appropriate sentence would have been imprisonment for five and a half years, but he discounted this by twenty-five percent in recognition of the plea of guilty, arriving at a head sentence of imprisonment for four years. He found that special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 existed, justifying a departure from the statutory ratio between the sentence and the non-parole period. He sentenced the applicant to imprisonment for four years with a non-parole period of two years and nine months. the application for leave to appeal 22 The sole ground of the application for leave to appeal was that the sentence imposed was manifestly excessive and the sole matter argued in support of this ground concerned the sentence imposed upon the juvenile co-offender. That person, who was 17 years and 9 months of age at the time of the offence, was dealt with in the Children's Court pursuant to s 33(1)(e) of the Children's (Criminal Proceedings) Act 1997. He was released on probation for a period of eighteen months on specified conditions. 23 The argument put on behalf of the applicant in the present case is that, having regard to that penalty, the applicant has a legitimate sense of grievance. 24 A specific argument advanced on behalf of the applicant was that his Honour the sentencing judge discarded the sentence imposed upon the juvenile co-offender and did not take it into account when imposing sentence. 25 The sentencing judge was well aware of the penalty imposed upon the co-offender. Indeed, there was a good deal of discussion about that during the sentencing proceedings. 26 It is apparent from the transcript that the sentencing judge in the present case was unimpressed with the manner in which the co-offender was dealt with. He properly refrained from characterising the penalty as manifestly inadequate. I would take the same approach. There is no material before this Court on which to make such a judgment, and of course there is no appeal from that sentence for determination. However, that does not mean that the principles of parity require that the applicant be dealt with in the same way as was his co-offender. 27 It is not entirely easy to discern the relevant roles of these two offenders. The third person involved was, like the applicant, an islander, and the juvenile was described in the statements as a Caucasian. His participation was described perhaps in most detail by a friend of Mr Thapa, a Mr Dipak Suddedi. He said he saw "the Caucasian guy" who had been punching Mr Suddedi run to Mr Thapa and kick him in the head at that time when he was on the ground and described the kick as: "really hard, it was like he was kicking a soccer ball as far as he could". 28 He said that after this Mr Thapa looked as though he was really hurt and was trying to lift his head off the ground, but he was straining and was unable to do so. He also described the activities of the applicant. 29 There were differences of a subjective nature between the applicant and the juvenile. There was an age difference of three and a half years. The co-offender had no prior criminal history, unlike the applicant. What is not known to this Court is what subjective material was placed before the Children's Court, but what is known is that the approach to sentencing taken in the Children's Court is not identical with the approach taken in an adult court. 30 This Court has available to it the remarks on sentence made by the Children's Court Magistrate, but these were not available to the sentencing judge. Counsel for the applicant in this case sought to demonstrate two things; one is that the sentence imposed upon the juvenile was not erroneously lenient; and the second, that in discarding any reliance on or reference to the penalty imposed upon the juvenile co-offender, the sentencing judge was in error. 31 I think it is correct, both from the transcript of the argument in the District Court, and from the absence of any reference in the remarks on sentence to the sentencing imposed on the juvenile, that his Honour did consider it appropriate to discard the sentence or the penalty imposed upon the juvenile. That, it seems, was because of his view that it was manifestly inadequate. 32 I am satisfied that his Honour was in error in this respect as is contended. There is authority in this Court that demonstrates that a sentence imposed in a Children's Court is a relevant consideration in relation to a sentence imposed on a co-offender in an adult Court: see R v Colgan [1999] NSW CCA 292 and R v Ellis and Carr [2002] NSWCCA 211. 33 The remaining consideration is the impact the error I have concluded was made should have upon the determination of this Court. As I have said, I do not think the sentence imposed on the juvenile should dictate the sentence imposed upon this applicant, but it may nevertheless have some bearing upon that sentence. 34 It seems to me that the area in which the penalty imposed upon the juvenile is most relevant, and where it was not taken into account, was on the question of the reduction in the parole period to be given to the applicant by reason of the sentencing judge's finding of special circumstances. 35 That period was reduced by only a short margin. It seems to me that the error could be corrected by this Court making an order that preserves the head sentence of four years that was imposed but by reducing the non-parole period to a term of two years, and I propose that this Court order accordingly. 36 GREG JAMES J: I agree. 37 HODGSON JA: I also agree. 38 The orders of the Court are: (i) leave to appeal allowed; (ii) non-parole period varied from two years and nine months to two years, otherwise sentence is confirmed; (iii) the sentence and non-parole period to commence on 23 July 2002; (iv) the applicant to be eligible for release on parole on 22 July 2004. (v) We recommend that release on parole be on condition that there be supervision by the Probation and Parole Service for as long as they think appropriate. ********** Last Modified: 07/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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