Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Uasi [1999] NSWCCA 306 Hearing dates: 17 September 1999 Decision date: 17 September 1999 Before: Sully J at 1; Barr J at 2 Decision: Leave to appeal granted; Appeal dismissed Catchwords: Criminal Law - sentencing - aggravated robbery - whether sentence manifestly excessive Category: Principal judgment Parties: Regina Afa UASI Representation: Counsel: Crown: L M B Lamprati Applicant: T J Golding Solicitors: Crown: S E O'Connor Applicant: T A Murphy File Number(s): CCA 60162/98 Decision under appeal Court or tribunal: District Court Before: O'Reilly DCJ File Number(s): 97/21/2196 Judgment 1. SULLY J: I will ask Barr J to give the first judgment. 2. BARR J: The applicant, Afa Uasi, seeks leave to appeal against sentences imposed upon him by O'Reilly QC DCJ on 13 March 1998. The applicant pleaded guilty to four charges, namely, the robbery in company of a bank on 3 September 1997, the attempted aggravated robbery with wounding at another bank on 12 September 1997 and two further armed robberies on the same day. The applicant asked his Honour in imposing sentence to take into account under the provisions of s 21 Criminal Procedure Act sixteen more offences, fourteen of them comprising robbery in company and the remaining two robbery by the applicant alone. His Honour complied with that request. 3. On the second matter, the attempted aggravated robbery with wounding, his Honour sentenced the applicant to penal servitude for twelve years, comprising a minimum term of eight years, commencing on 17 September 1997 and expiring on 16 September 2009, and an additional term of four years. On the remaining counts his Honour imposed a fixed term of eight years, to be served concurrently with the minimum term on the most serious count. As his Honour observed, the criminality of all these offences was enormously serious. The twenty offences were committed between 13 February and 12 September 1997. The applicant was addicted to heroin and committed robberies to fund his addiction. The total amount of money stolen was $238,897.09. 4. The maximum penalty for robbery in company or armed robbery is twenty years' penal servitude. The maximum penalty for the offence of attempted aggravated robbery with wounding is twenty-five years' penal servitude. 5. The four offences for which his Honour sentenced the applicant and eleven of the offences his Honour took into account comprised attacks on banks, their staffs and customers. His Honour discerned a pattern of behaviour adopted and developed by the accused and his companions during the months over which the attacks took place. In only one attack was the applicant alone. In the others he was accompanied by one, two or three or more companions. On each occasion two offenders staged a fight in the bank, so diverting the attention of staff and customers while one or more offenders jumped over the counter and carried out the robbery. In several of the offences the applicant himself was armed with a weapon, either a knife, a meat cleaver or a screwdriver. On one occasion he stabbed a bank manager twice and on another occasion a teller was assaulted and her handbag and its contents were stolen. 6. Of the other attacks, three were carried out in chemist shops and in one of them the applicant produced a knife. In the final offence a handbag was snatched from a woman in the street. 7. The applicant was born on 8 August 1979. He had been dealt with in the Children's Court for causing malicious damage, breaking, entering and stealing, using offensive language and breaking and entering with intent. 8. In Victoria he had been dealt with for unlawful possession, being unlawfully on premises, possessing and using heroin, as well as attempting to use heroin. 9. He had been arrested by Queensland police in April 1997 but had escaped from their custody. At the time of the offences for which his Honour was sentencing him, he was still at large on the offences with which he was then charged. 10. It was submitted on behalf of the applicant that his Honour fell into a number of errors, the result of which was that his Honour imposed a total effective sentence outside the proper range of his Honour's discretion. 11. The first complaint was about the way it was submitted his Honour dealt with the evidence of a psychologist, Mr Fathers, whose report was in evidence. Parts of the report said this: About two years ago Mr Uasi was involved in an accident which resulted in him sustaining severe head injuries. He fractured his skull and had to have a blood clot removed. Since that time he has reported neurological signs such as headaches, as well as altered perception. Added to this there is a history of learning disability as well as behavioural disturbance. … When he was aged about 16 years, Mr Uasi had an accident which left him with a serious head injury. The full effects of this injury have never been fully investigated. Mr Uasi fell through the ceiling of a shop he was intending to rob. Although the ceiling was of standard height, he fell through onto his head fracturing his skull. I am not sure how he was found, but it would seem that Police were very quickly on the scene. He was taken to hospital for treatment and it was necessary to remove a blood clot. I do not know if he Mr Uasi lost consciousness. He was hospitalised for about two weeks. Apart from the skull fracture, which has left significant scarring uneven bone healing. Mr Uasi said that his left ear is 'dead', ie, deaf. This apparently is an outcome of the accident. He did not report any memory loss but generally Mr Uasi seems to ignore the effects of possible brain injury although denial of loss is a fairly common report by people affected by brain damage. His eyesight is unaffected. Nonetheless it would seem that there has been an effect on his concentration and attention span. Mr Uasi said that post discharge he was 'in a daze for about a month'. He continues to not match people and names and has other recall difficulties. On his recall Mr Uasi said that he had various tests in hospital but these were incomplete. He was advised to return for follow-up and further tests but did not do so. … Symbol Digit Modalities Test Mr Uasi performed poorly on this test. Considering this result, it can be said that there is the possibility of the presence of brain damage. Mr Uasi's result was three standard deviations below average and is a significant result. His approach to test taking was good and he was co-operative. … Because of his lifestyle over the previous eight years, Mr Uasi has the characteristics of impulsivity, intolerance, hostility and he can be very aggressive. In Mr Uasi's case there may be a mix of personality and temperament plus his use of chemical substances as well as bring (sic) damage. Depressive symptoms are apparent and there are strong feelings of inferiority and insecurity. Mr Uasi is fatalistic about his future. 1. The passage of his Honour's remarks on sentence which was criticised is as follows: I have read the psychological report which is a helpful document of Mr Fathers. There is mention there of a head injury sustained in circumstances where he was about to rob a shop and fell through the ceiling. I observed the Prisoner in the witness box and he certainly did not demonstrate any sequelae which would indicate any brain damage and that is not suggested by the psychologist. Indeed there is no report of any memory loss but it is clear that from the psychological report that he is certainly not a scholar. 1. It was submitted his Honour erred first because of the statement that brain damage was not suggested by the psychologist, then because he was not entitled to diagnose the applicant's medical condition, then because his Honour said that there was no report of any memory loss and then because the description of the applicant as "not a scholar" did not properly reflect the results of the test carried out on the applicant. 2. It is clear from Mr Fathers' report he had very little information about the effects of the applicant's fall, apart from the immediate effects on the skull and the need to remove the clot. He observed that the applicant was deaf - no test was done to confirm it - and that the deafness resulted from the fall. 3. Although he was informed that tests had been done, the results of which might have suggested the presence or absence of brain damage, he did not have the results. He himself performed a test which demonstrated the possibility of the existence of brain damage. He observed that there was a history of learning disability and behavioural disturbance but that the applicant did not think his memory was impaired or that he understood any less. 4. The most Mr Fathers could say was that it seemed that there was an effect upon the applicant's concentration and attention span and that there was the possibility of brain damage. It was not his opinion the applicant was suffering the effects of brain damage and his Honour could not on the evidence of Mr Fathers have found the existence of brain damage. 5. In any case his Honour understood the applicant was intellectually dull, immature, irresponsible, and had a short temper. 6. Whether brain damage was in any way responsible for the applicant's intellectual deficit and social disabilities was really of little consequence since, whatever their causes, the position was as Mr Fathers had put it and as his Honour accepted it. 7. There was a submission before this Court that the failure by his Honour to refer to a number of aspects of the report, namely, the applicant's dysfunctional family background and difficulties at school as well as the deafness in an ear, showed that his Honour had not read the report. I would not draw such an inference. His Honour said that he had read the report and quoted paragraphs from it. 8. In my opinion his Honour was correct in observing that no brain damage was suggested. All that Mr Fathers suggested was the mere possibility of brain damage. His Honour was entitled to observe that the applicant's appearance did not suggest brain damage. His reference to there being no report of memory loss must have referred, I think, to what the applicant told Mr Fathers and what Mr Fathers had in turn reported to the Court, and was correct. His Honour's description of the applicant as not being a scholar meant that he was intellectually dull, and that was the fact. In my opinion there is no substance in these complaints. 9. The next submission was that his Honour erred in dealing with the applicant's prior criminal history in failing to state that the applicant had never before served a custodial sentence. In my opinion his Honour's failure to mention the obvious does not suggest he did not realise that this would have to be the applicant's first custodial sentence. 10. Then it was submitted his Honour erred in failing to state that the applicant had never been convicted of an offence of violence. If it were necessary, I would regard causing malicious damage as an offence of violence. In my opinion this ground of appeal should fail. 11. The next ground of appeal complained about his Honour's statement that at the time of the assault the applicant was an escapee from Queensland. That was a reference to a question and answer appearing in the transcript of a record of interview between the applicant and a police officer. The officer was having the applicant confirm things he had told police since his arrest. The question and answer were as follows: Q 60 Also that you escaped lawful custody in Queensland some time late last year or earlier this year? A Yeah. 1. In addition, a document was tendered by the Crown called Crown Case Summary and Submissions which combined a series of statements of fact and submissions. Par 6.5 of that document said this: Commission of Offences Whilst an escapee The Prisoner at the time of the commission of these offences was an escapee from police custody. He had been arrested by Queensland Police in April 1997 and whilst being held at Southport Police Station jumped from a window and made good his escape. It is a matter of aggravation that these offences were committed whilst the Prisoner was at large, effectively 'on the run' from custody. 1. No objection was raised below to the tender of that material in so far as it purported to be factual, and his Honour was entitled to use it as fact and to combine it with the question and answer in the interview to which I have already referred. 2. Given that the first of the offences for which his Honour was sentencing the applicant was committed in February 1997, the second in March and all the others between April and September, his Honour's statement that all the offences were committed while the applicant was an escapee was not literally correct but it was I think substantially correct. The difference, I think, is not significant to his Honour's assessment of the overall criminality of the applicant. 3. Then it was submitted that it was inappropriate for the Crown to raise the matter in the way it did and an error for his Honour to consider it as he did, given that the applicant had not been convicted of the escape. I do not agree with that submission. The Crown put its case forward partly as an assertion of fact which was not objected to and partly as a submission. No evidence was put against it. The parties conducted their cases on the basis the applicant had escaped as the Crown asserted. 4. The final ground of appeal was made by reference to sentences later imposed on another man called Herman Smith. It is conceded by counsel for the applicant that Mr Smith's case is not a suitable one for comparison by the application of the principle of parity between sentencing of offenders. The difficulty that arises is that when the case was conducted before his Honour, the Crown put forward that Mr Smith, who had not yet then been sentenced, played an important role in a significant way in the offences for which his Honour had to sentence the applicant and that the role he played was greater than that of the applicant. Mr Smith came to be sentenced some months later before another judge of the District Court and, as sometimes unfortunately happens, was dealt with on an entirely different factual basis from the way his role was understood in the sentencing proceedings before his Honour. Whereas the criminality which his Honour was obliged to have in mind when sentencing the applicant was that of twenty offences, Smith was dealt with for only nine offences. Furthermore, the offences, although they involved robberies and the use of weapons, seem to have been different offences. 5. It was very properly submitted by counsel for the applicant, that the sentences imposed on Smith could not be dealt with upon the principle of parity or disparity. Nevertheless, it was put that the Court should take into account the concern understandably felt by the applicant because of the way Smith's role was portrayed in the applicant's sentence proceedings. Whereas the applicant expected Smith to get a substantially greater sentence than the one he received, he in fact received a lesser sentence. 6. In fact Smith received an identical sentence, namely, one of twelve years, but was more leniently dealt with in that there was an equal division between minimum and additional terms. One can sympathise with the view the applicant might take of the matter. However, it often happens that cases conducted at different times in different tribunals may have apparent initial similarities but turn out to be quite different. I do not think that this Court should take Smith's sentences into account in deciding whether the applicant should succeed in this appeal. 7. This Court is obliged to pay regard to the principles laid upon it by the Criminal Appeal Act, s 5(3) of which empowers the Court to substitute a lesser sentence in an appeal like the present one if it properly comes to the view that such other lesser sentence is warranted. In my opinion the Court could not come to such a view in the present case, such was the seriousness of these offences. Although because of the seriousness of the offences I would grant leave to appeal I would dismiss the appeal. 8. SULLY J: I agree with the orders proposed by Barr J for the reasons which his Honour gives. The orders of the Court will be as proposed by Barr J. ********** Amendments 22 April 2020 - Publication restriction removed – judgment published 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: 22 April 2020