District Court New South Wales Medium Neutral Citation: R v Misa; R v Ramos-Malo; R v Vaafusuaga [2019] NSWDC 788 Hearing dates: 04 October 2019 Date of orders: 04 December 2019 Decision date: 04 December 2019 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Ramos-Malo – aggregate sentence of 10 years with a non-parole period of 6 years Misa – aggregate sentence of 4 years with a non-parole period of 2 years Vaafusuaga – term of imprisonment of 4 years with a non-parole period of 2 years Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Violent offences — Wound with intent to cause grievous bodily harm SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings SENTENCING — Relevant factors on sentence — De Simoni/double counting SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Subjective considerations on sentence — Age of offender SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Bugmy v The Queen [2013] HCA 37 Markarian v The Queen [2005] HCA 25 McNaughton [2006] NSWCCA 242 Muldrock v The Queen [2011] HCA 39 Munda v State of Western Australia [2013] HAC 38 R v Pullen [2018] NSWCCA 264 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Regina (Crown) Dahcell Marco Charlton Ramos-Malo (Offender) Pio Misa (Offender) Jimmy Vaafusuaga (Offender) Representation: Henry Hudson (Crown) Brian Royce (counsel) (Offender – Misa) David Pullinger (counsel) (Offender – Ramos-Malo) Greg Smith SC (counsel) (Offender – Vaafusuaga Director of Public Prosecutions (NSW) (Crown) File Number(s): 2018/00224419 & 2018/00392401 (Misa); 2017/00103312 & 2018/00224415 (Ramos-Malo); 2018/00237079 (Vaafusuaga) Ex Tempore Revised JUDGEMENT SENTENCE 1. I continue with Ramos–Malo. I have already indicated the sentence that I would impose for the offence of robbery in company. FURTHER OFFENCES 1. The next matter arose from events on 21 July 2018. The offender was charged with three offences. The first, assault occasioning actual bodily harm in company upon a man named AH, contrary to s 59(2) Crimes Act 1900. The particulars of the charge in the charge certificate are that: "On 21 July 2018, at Rooty Hill in the State of New South Wales, did assault Anthony AH, thereby occasioning actual bodily harm to him, while in the company of Pio Misa, Salec Sua, Jimmy Vaafusuaga and Timothy Willett." 1. An offence contrary to s 59(2) Crimes Act 1900 carries a maximum penalty of imprisonment for seven years. 2. The second offence is a charge of wounding with intent to cause grievous bodily harm, contrary to s 33(1) (a) Crimes Act. The particulars in the certificate are: "On 21 July 2018, at Rooty Hill in the State of New South Wales, did wound TT with the intent to cause grievous bodily harm." 1. The maximum penalty for this offence is imprisonment for 25 years. There is a standard non‑parole period of seven years, for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999. 2. The third offence is another of assault occasioning actual bodily harm in company, this time upon ST, contrary to s 59(2) Crimes Act. The particulars of this are that the offender: "On 21 July 2018, at Rooty Hill in the State of New South Wales, did assault ST, thereby occasioning actual bodily harm to him, while in the company of Pio Misa, Salec Sua, Jimmy Vaafusuaga and Timothy Willett." 1. Again, the maximum penalty for that offence is imprisonment for seven years. PLEAS OF GUILTY 1. He pleaded guilty in the Local Court to these offences, and therefore a discount of 25% is to be applied in accordance with the legislative scheme that is now in place to reflect the utility that the plea has provided in each case. The discount will be applied to each of the sentences that would have otherwise been imposed or identified had he not pleaded guilty, after the synthesis of the objective and subjective facts that will inform the starting point. THE CO-OFFENDER WILLET 1. There is a co‑offender who was dealt with, Timothy Willett, resolved on 21 June 2019 at Mount Druitt Local Court, where he was charged with two offences of assault occasioning actual bodily harm and one of affray. The sentence imposed was imprisonment for 20 months, with a non‑parole period of 10 months from 21 June 2019. 2. The question of parity does not arise strictly in this case. The prosecution of Willett occurred in the Local Court, and the offences, upon which he was presented, were the assault occasioning actual bodily harm offences, and an offence of affray. The decision to prosecute at that level might well have been upon the basis of his more limited role in the offending. PRE-SENTENCE CUSTODY 1. As I indicated, I will impose an aggregate sentence commencing on 8 September 2018. He was subject to conditional liberty at the time of this misconduct in the form of the bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, to which I shall come. THE STANDARD NON PAROLE PERIOD 1. The standard non‑parole period offence required consideration of the principles that have been pronounced both in the Court of Criminal Appeal and in the High Court of Australia. The provisions introducing the standard non‑parole periods are set forth in Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999, amended to their present form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. 2. The standard non‑parole period for an offence is that which is included in the table to the provisions. As I have indicated, the period for the offence of wound with intent to cause grievous bodily harm is seven years' imprisonment. It represents the non‑parole period for an offence in the table, taking into account only the objective factors that affect the relative seriousness of the offence, upon which assessment it is found to fall within the middle of the range of objective seriousness. 3. The standard non‑parole period must be taken into account when determining the appropriate sentence for the particular offence, without limiting the matters that are otherwise required or permitted to be taken into account. I must record reasons for setting a non‑parole period that is longer or shorter, identifying each factor taken into account. Thus, the objective gravity of the offence will be assessed upon the consideration of objective factors affecting the relative seriousness of the offence, without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending, bringing to account relevant factors from s 21A of the Act, except for those that are essential elements or integral characteristics of the offence. 4. The fixing of the non‑parole period for an offence is but part of the task whereby the Court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. 5. I must not embark upon an arithmetical or staged or tiered process of reasoning when assessing appropriate sentence, but must identify all relevant matter bearing upon the question of the appropriate sentence in a process of intuitive synthesis, discussed, for example, by McHugh J in Markarian v The Queen [2005] HCA 25. When determining a sentence for an offence for which there is a standard non‑parole period specified, it and the maximum penalty are legislative guideposts for the sentencing Court, along with other established sentencing practices and by reference to matters identified, where relevant, in ss 3A, 21A and 22 Crimes (Sentencing Procedure) Act 1999. 6. The Crown has made submissions with regard to the objective gravity of this offence. Upon the material before me, I am satisfied that it falls above midrange of objective seriousness but not extensively above midrange. It is always a matter of judgement to identify precisely where on the spectrum an offence will fall, but it would seem to me that it is at a point above midrange, but marginally so. 7. These provisions, which I have sought to summarise, are not without their difficulty in application; recognised by Johnson J in Tepania v R [2018] NSWCCA 247, beginning at para 110. His Honour summarised there in six paragraphs the effect of the provisions to which I have referred; consistent, I believe, with what I have had to say. Then at para 112 continued: "In sentencing for an offence (whether or not a standard non‑parole period offence), a Court should make an assessment of the objective gravity of the offence, applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non‑exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment…" 1. At para 113: "The concept of 'moral culpability' was used by the sentencing judge in this case and in submissions to this Court. The term 'moral culpability' has been used (in a somewhat flexible way) as part of the general law of sentencing." 1. His Honour then referred to various decisions where that term has been discussed, acknowledging that a mental abnormality might diminish moral culpability and that an antecedent criminal history might illuminate moral culpability. His Honour then went on to discuss in the following paragraphs Muldrock v The Queen wherein it was observed that moral culpability may mean that retribution and denunciation did not require significant emphasis and Munda v State of Western Australia [2013] HAC 38 in which the discussion included the proposition that an offender affected by an environment in which the abuse of alcohol is common must have that taken into account when assessing moral culpability, balanced against the seriousness of the offending. His Honour then quoted from Bugmy v The Queen [2013] HCA 37 at para 44. 2. In this case it is suggested that the eruption of violence, to which I am about to come, was partly prompted by what were racial comments, perhaps extending to slurs, which I would accept should not be ignored in the assessment of the moral culpability of any of these offenders in the commission of the serious misconduct which has them now before the Court. THE FACTS 1. The statement of facts refers to there being five offenders, to whom I have referred to far. They had been together at a house party before attending The Carousel Inn at Rooty Hill around 1am. They had all been drinking alcohol before arriving there. The three victims: TT was aged 42, AH was aged 39 and ST was aged 41. TT and AH were patrons of the hotel, and ST was the manager on duty. The event was captured on various CCTV cameras. This was played in the course of the presentation of the matter when it was last before me. I have, as a consequence, an appreciation of the extent of the violence and the circumstances in which it was perpetrated. 2. All offenders were part of a joint criminal enterprise which had as its goal assault upon TT and AH. However, the conduct extended to include an attack upon the manager on duty, ST; and hence, insofar as this offender is concerned, he faces three charges as are particularised. 3. The facts that I am outlining, however, are common to all of the offenders who will be dealt with for the misconduct reflected in the particular charges upon which they have been presented. 4. Sometime after 6.30pm on the evening of Friday 20 July 2018, the victims TT and AH met each other at the hotel, where they consumed alcohol to the point of becoming intoxicated. About 12.55am on 21 July 2018, that is, in the early hours of the following morning, they entered the outdoor gaming area of the hotel. About 12.57am AH sat down in front of a poker machine and began playing. TT initially stood behind him, before eventually sitting down on the seat next to him. There was an unknown male of Polynesian appearance wearing a grey jumper and backwards a black cap sitting on a seat next to TT. 5. About 12.59am the offender Sua entered the outdoor gaming area through the external gates, wearing a black hooded jumper with a white stripe on the hood, with the hood over his head. I am referring to the description of the clothing worn by the offenders because that provides the opportunity to identify the conduct upon which each of them engaged in this event. Sua immediately walked toward the poker machine in the corner and greeted the unknown male in the grey jumper playing on the machine next to TT. A short time later, Sua walked back outside of the hotel into the car park. 6. About 1.01am, while TT and AH were still sitting in front of the poker machines, they were spoken to by one of the security guards, a Mr Falaniko. He thought the two victims were being loud, and he told them to keep it down. Around the same time, Sua walked back into the gaming area through the external entrance gates, and back to the poker machine next to TT and stood behind the unknown male in the grey jumper. While he was standing there, TT said to him, "Why are you looking at my fucking machine?" Sua immediately became aggressive. The security guard, Mr Falaniko, heard TT say this to Sua and so walked over to them. Falaniko said, "He is just watching his friend play". Mr Falaniko subsequently asked Sua if he had any identification. Sua provided him with his New Zealand passport, which he checked, and then Sua walked away. 7. Around 1.03am a gold coloured Ford sedan drove into the car park of the hotel and parked near the entrance to the bistro. This is a different entrance to the entrance into the outdoor gaming area from outside the premises. The external entrance to the bistro is a short distance from the external entrance gates to the outdoor gaming area, but on the same side of the premises. The gold Ford was driven by one Ms Maka, who had agreed to drive a number of people to The Carousel Inn from the house party; one of the passengers was Jimmy Vaafusuaga. 8. After the car was parked near the bistro entrance, Vaafusuaga alighted and stood near the external entrance to the bistro and had a cigarette. Over the next few minutes, he was met by Misa, Ramos-Malo, Willett and another man named Laush. 9. While this was happening, the victims and Sua continued to argue in the gaming area. The security person, Mr Falaniko, walked back over to try and diffuse the situation. After about a minute, Mr Falaniko told Sua to leave the premises. As Sua was walking toward the exit, he started yelling repeatedly at the victims, "Come outside, we'll fight. Come out". Before Sua had walked outside, both victims got up from their seats and walked towards Sua, yelling and gesturing towards him. Sua stopped at the door and gestured to the victims to come outside. 10. At 1:05:30am Sua walked outside of the premises through the external gates, slamming a gate on the way out. I pause to note that these times are consistent with what is to be seen on the CCTV. As Sua walked outside the gaming area into the car park, he continued to yell and gesture at the victims. Sua was immediately seen by Vaafusuaga, Laush, Ramos-Malo, Misa and Willett, who were all still standing outside the bistro entrance. The five offenders ran towards Sua and met him outside the external gates to the gaming area. One of the offenders said, "What happened?" At this point Mr Falaniko and another security guard walked to the entrance gates to see what was happening. The five offenders attempted to enter the gaming area, but the security guards would not let them in. At this point one of the offenders said, "Let's go to the other side". 11. Following this, Ramos-Malo, Misa, Sua and Willett all ran back towards the bistro entrance and entered the premises through the external bistro doors. The four offenders then ran through the premises and entered the outdoor gaming area through the internal door. About the same time, Vaafusuaga and Laush managed to enter the gaming area through the external gates after the security guards' attention had turned to the other offenders entering through the internal door. 12. The five offenders all walked towards the two victims. Sua in particular was acting aggressively; as he walked towards them; he was shouting at them and challenging them to a fight. The victims got up from their seats and were raising their arms and gesturing toward the offenders. At this point the three security guards tried to diffuse the situation by getting between Sua and the victims. Sua made attempts to push past the security guards, but ultimately, security pulled him away from the victims. Whilst Sua was being pulled away, the assaults began. 13. Misa pulled out a timber chair leg from inside his clothes. He held the timber leg by his side for a short time before hitting AH in the back of the head with it twice. AH immediately backed away. Misa then followed him into the middle of the brawl and hit him a third time with the timber chair leg. At this point Sua was still being held back by security. 14. This conduct is that upon which the Crown has advanced for the offence of assault occasioning actual bodily harm in company upon AH. 15. The next portion deals with the wound with intent to cause grievous bodily harm upon TT. Ramos-Malo pulled out a hammer from inside his jacket and hit the victim TT in the head a number of times. As TT was fighting back, he was punched in the back of the head by Vaafusuaga. TT fell to the ground, and Vaafusuaga continued to punch him multiple times in the head while he lay on the ground. At the same time, Ramos-Malo stomped on the head of TT multiple times. At this point Ramos-Malo raised his arm to hit TT again with the hammer, but as he did so, he was pulled away by Laush. Ramos-Malo and Vaafusuaga then both moved toward AH. 16. While this was happening, Willett turned his attention towards AH and punched him multiple times in the head. AH ended up on the ground. Laush came over to pull Willett away, however before he did so Laush appears to kick out towards AH. After about a minute, the offenders began to head towards the exit. While walking to the exit, Vaafusuaga picked up the hammer which had been dropped by Ramos-Malo, and took it with him as he left. 17. TT was left lying in a pool of blood, unconscious on the ground, for at least 30 seconds. By this point Sua had been released by security. While TT was still lying motionless on the ground, Sua walked over to him and picked up his head by his hair and shook it for a short time. Sua then walked out the external gates of the gaming area into the car park. 18. The next section deals with the assault upon ST. As the incident began in the outdoor gaming room, ST, the manager on duty, was called to the area by one of the gaming staff. ST ran to the outdoor gaming area and entered through the internal door. Shortly after he entered the room the assaults began. ST was standing a short distance from the fighting and yelled, "You're on CCTV; we have hundreds of cameras here. Whatever you are thinking of doing, you don't want to do it here". He yelled, "Police have been called. Police have been called". 19. As the fighting appears to finish, ST was standing near the internal entry door to the gaming area when he was approached by Ramos-Malo. He walked up to ST with a wooden chair leg by his side. Ramos-Malo subsequently raised the wooden chair leg and hit ST in the right side of the face with it. ST immediately fell to the ground; he was rendered unconscious. He subsequently began bleeding from his mouth and nose. 20. After all the offenders had left or been removed from inside the premises, they remained just outside the gate to the gaming area. Laush and Sua continued to yell abuse and gesture towards AH, who was standing in view of the exit gates, gesturing for them to come back in. Sua attempted to get back inside, but was prevented from doing so by the security guards. Laush jogged around to the external bistro entry door and again entered the premises. Ramos-Malo followed him inside. Laush began walking through the hotel. Ramos-Malo entered and ran through the hotel, past Laush, toward the internal entrance to the pokies area. 21. When he arrived, Ramos-Malo opened the door where AH was standing close by, and he struck AH from behind with a timber chair leg in the head. Ramos-Malo subsequently dropped the timber chair leg. Following this, Laush, Ramos-Malo and Willett were escorted to the exit by security. After a few minutes had passed one of the offenders ran back toward the external gates of the gaming area, jumping up and down and screaming. He was armed with another timber chair leg, which he subsequently threw toward the security guards standing at the gates. This narrowly missed them. One of the offenders walked over to him and pulled him away, and all of them moved from the scene. 22. About 1.08am the police were called by an employee at the hotel. About 1.12am the police began arriving, and others began to patrol the surrounding area. As they arrived at The Carousel, the offenders ran from the scene, with the exception of Sua, who jumped into the gold Ford sedan driven by Ms Maka. She began to drive the car toward the exit, but stopped about 30 metres away when the police activated their sirens. They approached the car and spoke to Sua; he was arrested. 23. Shortly after, Vaafusuaga and Misa were seen nearby by patrolling police; they were running down Abraham Street and turned into Victoria Street. They were called to stop, but they kept walking. The police approached Vaafusuaga and arrested him. He had blood on his face and cuts to his mouth and lip. When the police approached Misa he ran away. He refused to stop when told to do so, and was ultimately tacked by a police officer and arrested. 24. Ramos-Malo was stopped by the police in Victoria Street, wearing a black shirt, black pants and white shoes. He had blood on those shoes, which matched the victim TT. He was cautioned and arrested. 25. All of the offenders were taken to the Riverstone Police Station but declined the opportunity to participate in an interview. Vaafusuaga was taken to Hawkesbury Hospital because he had a cut lip that needed to be treated. As I understand the matters, he suffered that blow on the backswing of one of the other offenders wielding the hammer. 26. TT was treated by paramedics at the scene before he was taken to Westmead for further treatment. He suffered a non‑displaced fracture to the right side of the skull near the temple, a fracture to both sides of the nasal bone, a displaced nasal septum fracture, two right sinus wall fractures, extensively comminuted and moderately displaced fractures to the floor and lateral wall of the right eye socket, mildly displaced comminuted right orbital floor fracture, mildly displaced comminuted right orbital lateral wall fracture extending into the right sphenozygomatic suture, a laceration to his cheek and lip that breached the dermis and epidermis, a 5 centimetre laceration to his right eyebrow, a 4 centimetre laceration to his right eyelid, significant swelling to his face, particularly around the right eye, and a wound on both ears as the result of earrings being pulled from his ears. At 2.49pm on 21 July 2018 TT was discharged from Westmead Hospital. 27. AH was treated at the scene by paramedics in relation to two lacerations to his head. He was advised to go to hospital, but he refused. He suffered headaches for a couple of days after the event. 28. ST was treated by paramedics at the scene before being taken to Westmead Hospital. On examination, ST had mild tenderness and bruising around his right maxilla and some bruising under his right eye. A CT scan of his skull showed a comminuted depressed fracture of the anterior wall of the right maxillary antrum, being the central bone of the mid‑face. 29. The facts do not include any particulars of where from the weapons used in the attack came. 30. Having dealt with the facts surrounding the event in The Carousel Inn, and having indicated that in my judgement the offence should be found to be above midrange objective seriousness for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act, I should turn now to the reasons why I have come to that view. ASSESSMENT OF OBJECTIVE GRAVITY 1. Accepting that there was some provocation that seems to have been offered by the victims in this matter, aside from the victim ST, who was doing no more than to discharge his obligations as the duty manager, to take control of what was happening and to have the offenders desist. Nothing could be attributed to him that could be in any way seen to be provocative, justifying the attack he suffered. 2. The other two victims, though, were intoxicated. There were gesticulations and some communications, the particulars of which are not clearly provided in the facts. But it is said that these involved some sort of racial commentary or slur, which are brought to account. Ultimately however, it could not be said that there was any justification for the attack that followed, including, in its perpetration, the offenders taking steps to arm themselves; Ramos-Malo with a hammer and the others with legs off furniture. The provenance of those items, as I have said, is not clear to me on the material I have been provided. 3. I cannot find that they went to the hotel armed with those weapons for the purpose of an attack as it unfolded. I cannot find that they left the premises to arm themselves, but it is clear that they had the weapons at the time the attack unfolded. The other inference available is that these weapons were in the motor vehicle in which they travelled and available to them for use if and when the occasion arose, but the absence of material before me is such that I cannot conclude that fact one way or another. VICTIM IMPACT STATEMENT 1. There is a victim impact statement in this matter. The statements of principle to which I earlier referred when dealing with the victim's impact statement in the robbery offence pertain here. 2. TT writes of the injuries he suffered, requiring his hospitalisation. He came in and out of consciousness over a period of ten hours. He could not breathe properly. Half of his face was left without feeling. No matter what position he occupied, he could not breathe properly and he was scared. 3. He remained in his house for a period of two weeks after the event, frightened of people generally being near to him as he was moving about. He changed his section where he worked for a period of three months to avoid the risk of running into the perpetrators. He did not know who they were or, indeed, what they looked like or where they lived. He was fearful of what might occur if he ran into them by accident. 4. At the time of his statement on 10 October 2019 he was still unable to feel the right hand side of his teeth; they were completely numb. When his right cheek was touched in the eye socket next to his nose, he had a sensation of numbness. This has persisted for a period of up to 18 months, and his advice is that it is possible that he will not regain any feeling in that part of his face at all. 5. He feels anxious when he is out and about. He is anxious when people of Pacific Islander appearance are near to him. He was distressed at his fiancé, his children, stepchildren and grandson being exposed to what he suffered and the injuries that were inflicted. 6. There is no psychological assessment accompanying the statement; and as with the other document, I take it into account as providing a measure of insight into what the victim experienced and suffered. It would be hardly surprising to find that there would be some emotional sequelae in the nature of what he has described after such a vicious attack by these offenders, armed as they were, including the offender armed with a hammer. 7. I refer to the letter from Ramos-Malo to the Court, which was more apposite to the proceedings brought in respect of this event. I have already summarised his expressions of disgust and shame; his representation that he is a kind, fair, humble and caring young man, which stands in stark contrast to the behaviour upon which he engaged on this occasion. He represents: "On the night of this offence, arguments were made, racist comments were made and gestures were made towards a friend because of a misunderstanding. I am upset that racist comments still continue in my life, and this probably won't be the last of it. I'm also upset about the choice of friends in kept company growing up, where misunderstandings like these can be resolved but they are not." 1. Allowing him the benefit of a finding that there was something said to him that caused offence ‑ which one might accept to have been the case in the circumstances to allow this event to unfold as it did ‑ it could not have as I have already noted justified what followed. He continues to write of being filled with anger when under the influence of alcohol and drugs, causing him to react without self‑control, without sense of consequence, and to behave in a way highly out of character. 2. He knows as a fact, he writes, that he would have not reacted if he was not under the influence of drugs and alcohol, and affected by his poor choice of friends. He does not suggest this as an excuse, and he wishes to take full responsibility for his actions and will be held accountable for them, he writes. He speaks about his progress in custody, his wish to apologise to the victims, his entry upon programs ‑ to which I have already referred ‑ and what he has learned from this experience. SUBMISSIONS AND CONSIDERATION – RAMOS-MALO 1. The Crown's submissions concede the discount of 25% for each of the offences. The Crown reminds me that relevant to the assessment of the moral culpability and objective gravity in this offence is the degree of violence and the extent of the victim's injuries. I agree with the submission that the violence used against this victim was extreme, involving use of the hammer struck multiple times. I accept that the injuries are to be properly described as very serious. It is appropriate to take into account the extent of the injuries. I am not in breach of the De Simone principle in doing so. It is appropriate that I take into account the extent of the grievous bodily harm, even though it is an element of the offence. 2. The Crown submits this is an offence at midrange of objective seriousness, aggravated by the use of a weapon; that it was in company; conceding that there was some measure of verbal provocation; that the offences were impulsive but were, as the Crown notes, in licensed premises in a confined space. This offender is said to be the highest level of culpability in this misconduct; a proposition with which I agree. I have already indicated that I find this offence to be marginally above midrange. 3. The offence upon AH, the Crown submits, also involved a significant degree of violence. He was struck first by Misa, wielding a wooden chair leg; then set upon by the co‑offender Willett, who punched him multiple times. He had no significant role in the initial assault; however, as it unfolded, he ran back through the hotel into the gaming room and struck the victim on the back of the head with a wood chair. This is aggravated by the use of that item as a weapon. I agree with the submission, this is just below midrange. 4. The offence upon ST, accurately described as an innocent bystander simply discharging his obligations as the duty manager, who suffered his attack involving the use of a weapon. He suffered the depressed fracture to the mid face bone. I agree with the Crown's submission that this offence falls near midrange. 5. The Crown has addressed upon the question of parity with regard to Timothy Willett. I have already observed the contrasts to be drawn between his conduct, the level of the prosecution mounted against him, and the offences with which he is charged; matters that were observed by Corry LCM, whose judgement I have and who imposed the sentence of 20 months with non‑parole period of ten months. I agree with the submission that the sentence to be suffered by Ramos-Malo in respect of this misconduct exceeds significantly what should have been suffered by Willett, who was not armed and played a less significant role overall. I have brought to account that Willett is five years older than this offender. 6. Mr Pullinger in the course of his submissions acknowledged the breach of the s 9 bond, which was to be resolved by this Court to save the matter being remitted to the Local Court. He asked me to bring to account the bail conditions to which he was subject before he was incarcerated, including daily reporting, limited association and geography, and the curfew. 7. He referred to the limited support in his formative years, the commitment to improvement that he has made whilst in custody, his determination to improve himself, his letter of remorse demonstrating insight, his awareness of the harm he caused having been given access to the victim impact statement. I am reminded of his youth, the limited significance as it is said of his antecedent record, his promising rehabilitation, and his remorse, which I would find is genuine. It is conceded that there should be fulltime imprisonment, but there are special circumstances. 8. The papers relevant to the s 9 bond were marked exhibit C. I should confirm as well that the offender acknowledged his plea of guilty in the Local Court, as did Glover, and adhered to his pleas of guilty in this Court. THE BREACH OF BOND 1. Turning now to the s 9 bond; this was for an offence contrary to s 54(3)(a) Road Transport Act 2013, which creates the offence of driving whilst the licence is suspended for reasons other than non‑payment of a fine. The maximum penalty specified for a first offence is imprisonment for six months and a fine represented by 30 penalty units. 2. The offence of driving whilst suspended occurred after the preceding offence of driving whilst suspended, middle range PCA, and police pursuit, which occurred on 11 March 2017. In those circumstances, this would be a second offence, I would note, wherein the maximum penalty specified is a fine represented by 50 penalty units and imprisonment of 12 months. 3. HUDSON: Your Honour, I don't know that that's right. I understand he was sentenced for both drive whilst suspended on the same date. 4. HIS HONOUR: I'm sorry. It's on the same‑‑ 5. HUDSON: While it was a second offence, because he was sentenced on the same date, it is considered a first offence. 6. HIS HONOUR: In fact, I wrote the judgement on that point. If they are determined on the same day, that is not a second offence. I will go back to the other maximum penalty of six months and the fine I identified. 7. The circumstances of the offending that led to this bond were that on 6 April 2017 at 3.25am Mount Druitt Police saw the offender driving a motor vehicle in breach of conditions of bail which proscribed his occupation of the driving seat of a motor vehicle. He was arrested for breach of bail and for driving whilst suspended. The police were aware of him by reason of the earlier occasion including the pursuit. 8. The investigation by the police included confirmation that he had driven the vehicle to the point where they confronted him. The vehicle was captured on closed‑circuit television at a McDonald's restaurant. He was seen to drive the vehicle into the premises and enter that establishment. The UHD dash camera fitted to the windscreen of the police vehicle captured the offender driving the vehicle on Popondetta Road and entering the McDonald's. That sequence of images was also obtained. His licence, according to the record held by RMS, was suspended due to demerit point accumulation. 9. I do not have his traffic record, but he has sufficient information on his antecedent record to allow me to deal with this matter. I shall revoke the bond. I note that he is already convicted of the offence. I will specify a period of imprisonment of one month. I had contemplated employing s 10A Crimes (Sentencing Procedure) Act 1999 and then to impose no penalty. However, the circumstances of the offending against the history I have, in my view, do not justify that course. SENTENCES – RAMOS-MALO 1. That brings me now to the imposition of the sentences. On any view, this is serious criminal misconduct. I have already announced the indicative sentence for the offence of armed robbery in company. 2. For the offence of assault occasioning actual bodily harm in company upon AH, the offender is convicted. I specify an indicative sentence for that offence of imprisonment for 2 years and 7 months. 3. For the offence of wounding with intent to cause grievous bodily harm I specify a sentence of imprisonment for 8 years, including a non‑parole period of 5 years. That being a standard non‑parole period offence, I am obliged to identify the non‑parole period I would have specified had I been imposing that sentence other than by way of aggregation. 4. For the offence of assault occasioning actual bodily harm in company upon ST I specify an indicative sentence of imprisonment of 3 years. 5. In each case, I have applied the discount of 25% rounded down to the periods I have identified, abandoning days that might have been the result of a strict application of the percentage to the starting point. 6. I intend an aggregate sentence in this case. The aggregate sentence I specify is one of imprisonment of 10 years. I specify a non‑parole period of 6 years, commencing on 8 September 2018. The non‑parole period of 6 years will expire on 7 September 2024. The overall head sentence will expire on 7 September 2028. 7. As is often the case, I have made an adjustment as I was proceeding through the judgement from the calculation I originally made. THE OFFENDER PIO MISA 1. I now turn to the offender Pio Misa. The same facts are presented against him, and I have already rehearsed those; I do not need to repeat them for the purposes of the determination of the sentence in this case. 2. He has presented on a slightly different sentencing structure. First, he is charged with assault occasioning actual bodily harm in company upon AH, contrary to s 59(2) of the Crimes Act 1900. The particulars of this offence contained in the charge certificate are: "On 21 July 2018 at Rooty Hill in the State of New South Wales, did assault Anthony HayAHward, thereby occasioning actual bodily harm to him while in the company of Salec Sua, Dahcell Ramos, Jimmy Vaafusuaga and Timothy Willett." 1. Maximum penalty specified is imprisonment for seven years. 2. In respect of the attack upon TT, he is charged with recklessly causing grievous bodily harm in company, contrary to s 35(1) Crimes Act 1900, for which the maximum penalty is imprisonment for 14 years with a standard non‑parole period of imprisonment for five years. 3. The statements of principle which I earlier summarised, and with regard to the decision in Tepania ibid, are applicable here. 4. He also pleaded guilty in the Local Court and was committed for sentence on 12 April 2019 to this Court. He was arrested on 21 July 2018. He has spent no time in custody, but has been subject to conditional bail since the date of his arrest. 5. Questions of parity will need to be brought to account, in light of the lesser approach taken by the Crown in respect of the attack upon TT with this offender. The particulars of the offence appearing in the charge certificate are: "On 21 July 2018 at Rooty Hill in the State of New South Wales, did cause grievous bodily harm to TT, being reckless as to causing actual bodily harm, and while in the company of Salec Sua, Dahcell Ramos, Jimmy Vaafusuaga and Timothy Willett." 1. He has a more modest record of antecedent offences and he is younger than the other offenders. He was born in 2000, which means he is now 19 years of age. His antecedent record consists of a robbery in company offence dealt with on 30 July 2015, for which he was given probation, and an offence dealt with on 12 September 2017 of custody of a knife in a public place and another offence of common assault, for which he was placed on bonds. 2. There is a sentence assessment report. He lives with his family in the Western Suburbs. He has the support of his parents and siblings. He has no dependents. He acknowledged that he is easily led by more assertive personalities. He is said to be a performing musician, and his lifestyle was sustained by royalties generated through his music. This was verified by his father, who is also his musical mentor as I understand it from the way the passage is crafted. As I read further, it appears that the mentor is someone separate to his father. 3. In addition to the royalties, he has support from his family. Apparently, his talent is such that his mentor is of the view that he would be offered a recording contract and be booked for live shows, including interstate performances. 4. The report includes the following beneath the heading of "Attitudes": "Mr Misa stated that he was intoxicated by alcohol at the time of the offence. He claimed that a combination of alcohol, peer influence and anger, having allegedly been racially insulted by way of the victims, contributed to his unlawful conduct. Mr Misa accepted that he behaved impulsively and did not consider the impact of his behaviour." 1. Once again, self‑induced intoxication does him no service in this matter. He claims to be a binge drinker. His father represents that his son is not one who expresses himself through violence. He had no prior history of alcohol related violence. It is said in the assessment of the author of the report that the offender's insight into his offending appears limited. The report continues: "While he acknowledged that the attack may have resulted in the victim experiencing a sense of fear, he did not appear to conceptualise the severity of the physical/psychological injuries potentially sustained." 1. He is willing to undertake supervision; to undertake community service. He is assessed as having a medium to low risk of reoffending. Recommendations are made. 2. The victim impact statement provided by TT is also relevant to the assessment of the sentence in this case. 3. Documents tendered in his case are, first of all, from an organisation with a heading or the title "When Worlds Collide". This is written by Mr Ricky Simandjuntak. He gave evidence in the offender's case. The offender did not. This document tells me a little of the relationship between the author of the document and the offender. This enterprise in which Mr Simandjuntak is employed manages the artists collectively known by the group name, of which this offender is a member. It is the same group to which I earlier referred. 4. I have the work experience of the author of this document outlined, and their endeavours in various capacities in the entertainment industry until August 2019, when he officially became the manager of this musical group of which two of the offenders are members. He gives a history of having met them during 2017, late in that year, in the Ted Noffs Street Uni at Mount Druitt. He speaks of interaction with them, their success with their streaming of product that they have made, the participation that the offender has had in the development of the group, and the opportunities that have been presented to them. He is said to be disciplined, with a good work ethic toward his song writing and recording; capable of applying himself conscientiously; and thereby demonstrating the ability to shift his attention from negative influences to be found in his environment. He attributes the offender with what is said to be deep regret and remorse for the actions that have resulted in the charges being brought against him. It is conduct said not to be a representation of his true character. 5. There is a document from DAMEC written by Taufui Halaholo, who provided a document in the other matter. She is the Pacific Islander alcohol and drug counsellor for DAMEC, which is the acronym for Drug and Alcohol Multicultural Education Centre, located in Blacktown and Liverpool. She has had three formal sessions with this offender and one telephone conference; aware therefrom of his involvement in these various proceedings. She addresses issues of anger management, alcohol abuse, positive choices to be made and underlying factors that led to his behaviour. He is described as active and forthcoming with his engagement in this opportunity, and willing to engage with the program and counselling to approach those issues. He has said he wishes he could turn back time and not make the same mistakes. 6. There is a document from Rolando Pisia, co‑director of Manna from Heaven Sandgate Incorporated. He is the founder of REKON Youth Outreach Service and co‑director for this organisation, Manna from Heaven Sandgate Incorporated. He is also a youth pastor for International City Church. The service he provided in these roles is summarised. He is willing to support the offender in these proceedings. He speaks of the group of which of offender is a member having made a generous donation to the REKON Youth Outreach Service. They performed in Brisbane in September this year and generously donated a portion of the proceeds from the concert to the extent of $2,500, for which Mr Pisia is obviously grateful, as he writes in the document. He humbly pleads for mercy and understanding on behalf of the offender, who he says is truly regretful for his transgressions. 7. Mr Simandjuntak, as I said, gave evidence. He confirmed the content of his report; the expression of remorse that fell from the offender where they were offered. The offender showed the witness the video recording of the event and a photograph of the victim; Mr Simandjuntak attributed the offender with sincere regret. 8. Submissions were made by Mr Royce minimising the role played by the offender. In the case of TT, there was no physical act toward him; and although joint criminal enterprise attracted liability for the misconduct upon which all of them engaged, the determination of sentence must be approached in a different way, requiring that there be a limited parity, if there be any parity at all, between the sentences imposed on the others and this offender. 9. He conceded that the provocation upon which the offender relies was of a limited significance, but it was racial abuse nonetheless. It was conceded that it will not mitigate significantly, but will have some bearing in context. I am reminded of the early pleas. It was seven months after his 18th birthday when the offence occurred. I am reminded of the bail conditions to which he was subject, including abstinence from alcohol, non‑association, geographical limitations, daily reporting and curfew. He submitted that rehabilitation is all but complete. I am reminded that the antecedents are modest. Alcohol does not assist him, but it does explain why he might have fallen under the spell of what was occurring. Totality is to be addressed. The remorse was unchallenged by the Crown. Of course, his youth is a matter that I will need to bring to account when assessing his capacity for judgement. 10. I was asked to consider an option other than full-time custody; an option even less than an intensive corrections order. Of course, the implication or the application of the provisions providing for an intensive corrections order, that is to say a sentence of imprisonment to be served in the community by way of an intensive corrections order, would require that the accumulated sentences do not exceed three years' imprisonment. 11. I am reminded of the recent amendments of 24 September 2018 to the Crimes (Sentencing Procedure) Act, whereby punishment is to be seen within the new paradigm, and the benefits that would attach to an ICO in a case such as this, including appropriate conditions. The Crown challenges those submissions, reminding me that the line in s 5 Crimes (Sentencing Procedure) Act has been crossed. 12. Written submissions provided on behalf of the offender remind me of the allegations made against this offender, which include that he actually assaulted the victim AH, but took no part in the assault on the victim TT, and is here only because of his liability by reason of a joint criminal enterprise. There is no evidence that the offender knew that Ramos-Malo was armed with a hammer, it is said. I am asked to take into account the provocation. 13. The submissions as presented upon those points should be read in light of the agreed statement of facts, which include that the offender Sua, in the initial stages, was vigorous in his engagement with the two victims AH and TT. He left the hotel and went into the car park, where the other offenders including this offender arrived in a motor car. They interacted before there was further verbal interaction between Sua and the victims, with Sua demanding that they come outside to fight. 14. The offender was with the others outside the bistro entrance. They ran towards Sua and met him outside the external gates. One of them asked, "What happened?" The five of them attempted to enter the gaming area, but they were excluded. One of them said, "Let's go to the other side", whereupon this offender and three others all ran toward the bistro entrance and entered through there, while Vaafusuaga and Laush managed to gain entry to the gaming area. All five approached the victims, with Sua in particular acting aggressively. Sua was restrained by the security guards, who attempted to keep him at bay; and whilst that was occurring, Misa produced the timber chair leg and struck AH. He struck him three times. 15. When that was occurring there was the attack upon AC's companion, TT, with Ramos-Malo using a hammer and stomping on the head of that victim and then raising the hammer again, only to be pulled away by his companions, or at least by Laush amongst his companions; whereupon Ramos-Malo and Vaafusuaga approached or moved towards AC; thereafter, after about a minute, the offenders moved towards the exit, leaving TT laying in his own blood, unconscious. 16. I do not agree that he took no part in the assault on the victim TT. He was there as a principal offender, part of the joint criminal enterprise at the time when the blows were inflicted by Ramos-Malo and when Ramos-Malo jumped on or stomped on that victim's head. He was not a participant to the extent that he inflicted any of the blows that were suffered by TT. 17. The submissions with regard to where this offence falls on the range of objective seriousness are in terms of below midrange; that is, with regard to the offence of recklessly inflict grievous bodily harm. I would agree with that. It is consistent with what the Crown has submitted. Insofar as the assault upon AH is concerned, though, I would find that to be at or about midrange. I note the Crown submits this is just below midrange, but I am of the view that that is rather more generous than required. 18. I am reminded of the principles that apply with regard to s 21A Crimes (Sentencing Procedure) Act. The aggravating feature in this case identified and conceded on behalf of the offender is that the offence involved the use of a weapon; this was so in respect of both offences. 19. I am reminded of various provisions from s 21A(3) of the Act in mitigation, including that this was not planned or organised. It is not, as I have indicated, clear on the material before me how and when these weapons came to be available to these offenders, and there is nothing before me upon which I could find that they had them there as some part of their planned or organised criminal activity; accordingly, that part of the submission I accept. 20. His record exists. Although it is modest, it must be brought to account. It does impact upon the assessment of sentence as an aggravating factor within the parameters of the decision in McNaughton [2006] NSWCCA 242 to which I earlier referred. It appears that his prospects for rehabilitation are good, although evidence is scant, but in the absence of any contest upon that point from the Crown I would accept that submission. 21. Similarly, with regard to remorse, I would not accept the proposition that he was not fully aware of the consequences of his actions because of his age or disability. It would beggar belief that someone about whom I have heard or read with such glowing comment would not appreciate that to strike another person with a weapon in the manner described would carry with it profound consequences. 22. I have brought to account his youth. I am satisfied that there are ample special circumstances. I am satisfied that the line in s 5 Crimes (Sentencing Procedure) Act is crossed. I am satisfied that all of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act are engaged. I accept the submission made by the Crown that nothing less than a custodial sentence is required in this case. This was appalling behaviour, a vicious attack; and punishment must follow. THE SENTENCES – MISA 1. In respect of the offence of assault occasioning actual bodily harm in company, the offender is convicted. I indicate a sentence of imprisonment of 2 years and 6 months, applying a discount of 25%, as I have indicated. 2. For the offence of recklessly causing grievous bodily harm I specify a sentence of 3 years and 6 months upon conviction for that offence. I include in that a non‑parole period of 2 years. 3. The aggregate sentence I impose is one of imprisonment of 4 years. I specify a non‑parole period of 2 years, commencing on 4 December 2019. The non‑parole period will expire on 3 December 2021. The overall sentence will expire on 3 December 2023. THE OFFENDER JIMMY VAAFUSUAGA 1. This brings me to Jimmy Vaafusuaga. He pleaded guilty to one offence of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) Crimes Act 1900, the particulars of which appearing in the charge certificate are that he: "On 21 July 2018 at Rooty Hill in the State of New South Wales, did wound TT with the intent to cause grievous bodily harm." 1. Maximum penalty, imprisonment for 25 years with a standard non‑parole period of seven years for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The expressions of principle to which I earlier referred apply once again here. 2. There is also in this case a Form 1 offence to be taken into account. The offender confirmed his plea of guilty in the Local Court, from where on 12 April 2019 he was committed for sentence to the District Court. He adhered to his plea of guilty before me. He confirmed his guilt in respect of the Form 1 offence of assault occasioning actual bodily harm upon AH, committed in company. 3. The maximum penalty specified for that offence, were he to be sentenced for that, would be imprisonment for seven years, but by taking this course he has avoided separate punishment for that offence. The consequence of that is that the sentence that would have otherwise been imposed for the principal offence, were it standing alone, will be increased to bring to account the additional offending reflected in the Form 1 offence, so that a sentence is achieved with a particular focus upon specific deterrence, denunciation and recognition of harm, and the community's entitlement for the Court to recognise the full range of the misconduct upon which the offender engaged. He has the benefit of avoiding a separate sentence, but at the same time, he has provided utility, which must be brought to his account. 4. I am reminded of the guideline judgement and, in particular, the judgement of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. 5. He will have a discount of 25% applied to the sentence that I settle upon, reflecting the utility of the plea of guilty in the Local Court, and in accordance with the legislation that governs these matters now. I note that he has spent time in custody before he was ultimately admitted to bail; a period of some 36 days. I shall, therefore, commence the sentence I impose today on 29 October 2019. 6. He was born in 1997 and is now 22 years of age. The victim impact statement provided by TT is, once again, relevant here. I should add that I have had the benefit of the judgement by Magistrate Corry, who sentenced Timothy Willett, the statement of agreed facts upon which that sentence was determined, and the antecedent offences that were accumulated by Willett and are listed in a bail report included in the material. When considering the impact of those proceedings upon the determination of sentence in the proceedings against these offenders, I have not overlooked Willett's age, born in 1993 and his more extensive criminal antecedents, including significant periods of custody that he had been required to serve. 7. Mr Smith of senior counsel appeared on behalf of the offender. He provided an outline of submissions and documents tendered in his case, including a psychological assessment by Ann‑Marie De Santa Brigida written on 4 October 2019. She refers to a more expansive array of offences, but I put that part of the report to one side. She deals with his family background and demographics. He is of the Samoan culture. He came to this country in 2010 with his family. He is not an Australian citizen. 8. His father is gainfully employed as a bus driver, without any history of substance abuse, psychiatric problems or criminality; although his father did have an alcohol problem until the offender was aged 12. His mother is gainfully employed. She has no adverse history. She also had a serious alcohol problem, though, which seems to have resolved. His parents are still together and they are supportive. There are seven children in the family and he is the fourth in order. All are living in this country except for one, who is in custody for some reason. 9. He claimed a difficult childhood, attributed to his parents' alcohol abuse which continued until he was aged 12 and was accompanied by verbal and physical abuse, but thereafter their relationship improved. It is now described as good. He is close to his siblings. He has never been married. 10. His education was in New Zealand. He had some trouble in school. He continued his education in Bidwell in this country, but left before year 11. He was truanting often, not completing homework, and was suspended twice. He began working in a warehouse, but left after ten months because of the poor pay. He then went to another company, doing warehouse work, but left after 12 months due to poor pay. He then entered work with another warehouse, but was taken into custody for this offence and lost that position. He was released and gained work in construction, but then was placed in Villawood Detention for a period of two months, after which he secured employment with a window company, which he held for two weeks. 11. He experimented with drugs at the age of 16, namely, cannabis. He then began to experiment with cocaine. He began drinking alcohol at age 17, which became a problem for him, it would appear; when inebriated, his personality is more outgoing than the shy person that he is when sober. He scored highly in a test which indicated that he was at risk for forming harmful drinking patterns. He has now stopped consuming alcohol, according to the report. 12. The report continues at some length with the analysis made upon representations attributed to the offender, including that there was no history of anger problems between the ages of eight and 11, and he was without symptoms. Various psychometric tests were administered, including for the assessment of his personality and for depression and anxiety. A risk assessment was performed, and the conclusion is expressed in the following terms: "In summary, the following has been noted ‑ 8.1. It has been asserted that there are insufficient grounds to indicate that Mr Vaafusuaga would have met the criteria for oppositional defiant disorder or conduct disorder during his developmental years. Accordingly, the diagnosis of antisocial personality disorder is formally deferred. 8.2. It has been noted that Mr Vaafusuaga was closely examined for any neurodevelopmental problems which could be indicative of impulsive aggression problems. He was administered the CAARS, but the results did not indicate ADHD. 8.3. Mr Vaafusuaga was administered the STAXI‑2, but the results did not indicate an underlying problem with impulsive aggression or Intermittent Explosive Disorder. It is noted that this is also consistent with the results of the anger scale and the SAQ, and the result of the IORNS. 8.4. Mr Vaafusuaga reported that he first consumed alcohol at age 17. He reported that from around age 18, he started to consume alcohol on a Friday and Saturday night; and on average would consume 24 cans or stubbies over the course of both nights. He reported that he seldom consumed alcohol during the week, but if he did, he would limit his use to 12 standard drinks on one night. The results of the AUDIT indicated probable hazards or harmful alcohol consumption. It is the assertion of this author that the current offences are a reflection of Mr Vaafusuaga's alcohol consumption." 1. Of course, s 21A(5AA) evaporates any mitigation that might arise as a consequence of his self‑induced intoxication. 2. There is support for the offender from a youth pastor, Saberio Faaulla, who has known him for over five years and knows the family. His parents are active and well respected members of the church. His father served as church secretary for a few years. He is surprised to hear of the offending by the offender, who is said to be a good person who deserves a chance. 3. Rick Kalkhoven is the logistics manager for the windows company. He speaks of the offender's work period with that organisation. He is a friend of the offender over five years. He speaks in positive terms. He is a not a threat to the community, he writes. He is a good person with a good heart, just going through a typical teenage phase when he was caught with the wrong group and engaged upon misconduct with which he is charged. 4. Another supervisor from the same company wrote of her perception of the offender. This is Louise Moro She sees him as professional, dependable and responsible. 5. Solomona Sapoaga writes of the offender. This author is the older brother of the offender. He is said to have been responsible, well‑mannered and of good character throughout his life. The impact of this conduct upon the family is profound, according to what Mr Sapoaga has written here. I can understand that. There could be no greater tragedy for a family close to one of the children, apart from the loss of that child to death, when confronted with the prospect of the child, although a young adult now, being sent to gaol for serious criminal misconduct such as this. As in all such cases, the family has the Court's sympathy, and it is sympathy which I extend to the other family members of these young men for the predicament they have caused themselves. 6. There is a rugby club official who has provided a report. Mr EJ Hook speaks of his knowledge of the offender in the times he was president and coach of this particular club. He was always a forthright and committed young man; respectful; well regarded by all. It is said that this conduct is out of character. 7. In addition to that material, today Mr Smith SC tendered a further document, which was before now transmitted electronically to my Associate by Mr Smith's instructing solicitors. This brings to my attention that he spent one month in the custody of Immigration at Villawood; his visa was cancelled by the Department of Home Affairs. 8. There is an agreed statement of facts regarding that, telling me that on 22 March 2018 he was granted a special category TY‑444 visa. On 2 August 2018 he was charged. He pleaded guilty on 12 April 2019. On 14 May 2019, the Department of Home Affairs cancelled his visa on the ground he failed the good character test. On 20 May 2019 he was taken into Immigration custody. On 28 June 2019 he successfully applied to the Administrative Appeals Tribunal for a review application. He is now on a bridging visa, pending the outcome of this matter. On 28 June 2019 he was released from Immigration detention. 9. Whatever is to happen with him at the instance of the Commonwealth is not a matter that is relevant to the determination of sentence in this case. However, I will bring to account that he has spent a period in custody, albeit with the Commonwealth authorities, as a direct consequence of his misconduct and his loss of status to be at large in the community. The offender did not give evidence and no other evidence was called. Mr Smith has provided his submissions. 10. SPEAKER: Sorry, your Honour, in regards to Mr Vaafusuaga, he did give oral evidence, your Honour. 11. HIS HONOUR: I am sorry; I am just trying to find the notes of that. Thank you for telling me. Was it with the other offenders? Just let me look. 12. SPEAKER: It was, your Honour; it was on the last occasion. 13. HIS HONOUR: You are right; I am sorry. Mr Smith was the first one to tender his case. 14. I am reminded that the offender gave evidence before me; the one offender in this instance who did so. He described his living arrangements with his family at Rooty Hill. He acknowledged his involvement in this fight. He engaged in efforts to stop Sua from his misconduct and attempted to hold him back. He saw Ramos-Malo in the fight with TT; he saw that Ramos-Malo had the hammer. He did not see Ramos-Malo with the hammer before the fight erupted; he went to help in the continuation of the melee, engaging in punching, including when TT was on the ground. That was the description given to his conduct in the material tendered by the Crown. 15. I will note with regard to the agreed statement of facts the participation of this offender in the events leading up to the attack on AH and then TT. His first participation, is described in para 12, when he travelled as a passenger in the motor vehicle to the hotel; and then para 13, where he was there met by the other offenders and the man named Laush. He was in the vicinity of all that was unfolding when Sua was engaged in his vigorous invitation to the victims to come out and fight. He interacted with Sua outside of the hotel; and when the others acted upon the remark, "Let's go to the other side"; he and Laush managed to gain entry into the gaming area from the external gates to that location when the security guards' attention was taken to the other offenders coming from the other direction. 16. He was one of the five who approached the victims. He was present when Misa pulled out the timber chair leg and struck AH three times. His participation in that offence, which is on the Form 1, is prosecuted as part of the joint criminal enterprise in which he was then engaged. 17. The offence upon TT is described. TT was struck by the hammer and fell to the ground, after he was punched to the back of the head by this offender; this offender then continued to punch him multiple times while he lay on the ground, as Ramos-Malo stomped on TT's head. He picked up the hammer that had been dropped after the attack and took it with him as he left. 18. It is upon that description that he concedes that he went to help Ramos-Malo in the course of the fight, including the punching there described and including when TT was on the ground and incapable of defending himself. 19. He expressed his remorse; he has done so with his family. He says he has changed his life. He was injured and required treatment at the Nepean Hospital, to which I earlier referred; and that was as a consequence of the backswing when the hammer was being wielded by Ramos-Malo. He cooperated with the police. He went in to be interviewed, admitted his involvement, and told them that he was regretful. He gave the psychologist all of the details that she included in the report, and he adopted those. 20. He acknowledged his excessive drinking on the night and his intoxication; this was the consumption of beer and bourbon. He was cross‑examined upon the presence of the hammer, and he acknowledged the continuum in his participation after he was aware that Ramos-Malo had that weapon. He denied that he was exaggerating his state of intoxication. He does not drink anymore. 21. He described his bail conditions, including the daily reporting and the curfew and his obligation to live at home. I have brought that to account. He has no prior convictions. His steps toward rehabilitation are noted. He has other work. Mr Smith SC submitted that I could employ s 9 Crimes (Sentencing Procedure) Act in this case, and at worst, he should suffer a sentence of imprisonment to be served by way of an intensive corrections order. His role was said to be the product of misguided loyalty. 22. The written submissions provided by Mr Smith repeat the circumstances of the offender and that he has been in custody for a period of time already in relation to the matter, as well as the period of time he spent in Immigration custody, which was added to these written submissions. He describes in detail in these the extent of his drinking leading to the misconduct. He advances his expressions of contrition and remorse; and he rehearses his personal history, which I have already summarised, drawing upon the psychologist's report. So too his education, employment and his substance abuse history and then there is reference to the people who have written on his behalf in such glowing terms. 23. I am asked to find that he appropriately contrite. I do so. I am asked to come to the view that the line in s 5 Crimes (Sentencing Procedure) Act 1999 has not been crossed, and if it has, a sentence other than fulltime custody should be served; preferably, it is said, by way of an intensive corrections order. I am reminded of what the Court of Criminal Appeal has recently said in R v Pullen [2018] NSWCCA 264. 24. The Crown submits to the contrary. The Crown submits that only a term of imprisonment to be served is appropriate in this case; conceding the 25% discount; noting the degree of violence and the extent of the nature of the injuries suffered. There is a discussion in the written submissions by the Crown of the parity principle, dealing specifically with what happened with Timothy Willett. The Crown concedes the need to backdate the sentence to be imposed and urges the importance of general deterrence. All of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act are engaged in this case. 25. The conduct of the offender cannot be confined to the blows he struck; it must be assessed within the context of the joint criminal enterprise upon which he engaged, which included the blows struck by his co‑offender which led to the grievous injuries suffered by the victim. The fact that he was aware of the use of the hammer in this attack and his decision thereupon to also batter the victim by punching first in the back of the head and then punching him when he was down on the ground raises the objective gravity of this offence. Although, in this case, I agree that the objective seriousness does fall below that applied, rather, in the case of the co‑offender Ramos-Malo for the reasons advanced by the Crown in the written submissions. 26. The offender also has the benefit of a clear record, but there must be general deterrence; there must be punishment; there must be recognition of harm, and denunciation for this behaviour. I accept that his prospects for rehabilitation are strong. I accept his contrition and remorse. I accept that specific or personal deterrence has a more limited role to play in his case, but I also agree that in his case there should be a sentence of imprisonment. THE SENTENCE 1. Accordingly, bringing to account the offence on the Form 1, the offender is convicted of the principal offence. I specify a period of imprisonment of 4 years, including a non‑parole period of 2 years, commencing on 29 October 2019. I am satisfied there are ample special circumstances in this case to justify a variation. Thus, the sentence is one of 2 years, commencing on 29 October 2019 by way of a non‑parole period to expire on 28 October 2021, with an additional term of imprisonment of 2 years to commence at the expiration of the non‑parole period which will expire on 28 October 2023. 2. I have brought to account his bail conditions and the time he spent in custody in the Immigration detention. In the absence of that, I would have imposed a sentence involving a longer period, in terms of months at least. The Form 1 I shall certify to confirm that I have taken the offence into account. ********** Amendments 04 February 2020 - Correct spacing typo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2020