Tonga, Samuel v R

1. [1]

   BASTEN AJA: On 14 November 2022, the applicant, Samuel Tonga, was sentenced for one offence of recklessly causing grievous bodily harm, with a further minor offence of failing to disclose the identities of the driver and other passenger in a car in which he had been travelling. The applicant entered a timely plea of guilty to the substantive offence and was sentenced to imprisonment for 22 months, with a non-parole period of 13 months. There are four proposed grounds of appeal: each is directed to the refusal of the trial judge to order that the sentence be served by way of an intensive correction order pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

2. [2]

   It is appropriate that there be a grant of leave to appeal against sentence in this matter, but for the reasons set out below, the appeal should be dismissed.

Background

1. [3]

   The following facts are derived from a statement of agreed facts on sentence (not all of which were in fact agreed) and a viewing of a video taken on a dashboard camera (dash cam) mounted on the vehicle immediately behind the victim’s vehicle.

2. [4]

   In short, the Tonga brothers (Samuel and Thomas) were travelling in a dark grey BMW driven by a third person on Luxford Road at Hassall Grove. The victim was driving in the same direction, in a black Ford Territory. Each vehicle “cut in” in front of the other and a verbal disagreement was exchanged between the victim and the offenders. A short distance later, the vehicle driven by the victim stopped in the righthand lane at a traffic signal. The vehicle containing the Tonga brothers stopped slightly behind the victim’s vehicle and in the lefthand lane. Viewed on the dash cam footage, Thomas Tonga was the first to get out of the BMW, from a passenger side door. At the same time, the victim got out of his vehicle and made his way to the rear of the vehicle. Thomas Tonga then moved to the front of the victim’s vehicle and approached the victim from the driver’s side. The victim opened the boot and grabbed a broom handle. Samuel Tonga then approached the victim from behind and tackled him from the lefthand side, punching him several times. The victim grabbed a crowbar from the boot of his car and swung it at the applicant, but missed. The co-offender then ran around the front of the victim’s vehicle and approached the victim and the applicant. Both the applicant and the co-offender punched the victim and wrestled him, throwing him to the ground. The co-offender punched and kicked the victim in the head while he was on the ground. The applicant grabbed the crowbar and struck the victim twice to the head. Both offenders then returned to the BMW and drove away.

3. [5]

   As a result of the assault, the victim sustained the following injuries:

4. [6]

   The offence under s 35(1) of the Crimes Act 1900 (NSW) carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of five years. While it is established that the standard non-parole period does not operate with respect to a sentence following a plea of guilty (even with respect to the undiscounted sentence) it is clear that the judge understood that, or he would have commenced with a sentence significantly in excess of that with which he did commence (prior to discount) of two years and six months.

Findings of trial judge

1. [7]

   At the completion of the hearing on Wednesday, 9 November, the sentencing judge, Buscombe DJC, stood the matter over to the following Monday at 3pm for sentencing. The judge dealt separately in his reasons with each of the co-offenders. [1] The judge’s reasons in relation to the applicant were only challenged in limited respects, and are noted below so far as necessary to address the specific challenges and the failure to impose an ICO.

Relevant findings

1. [8]

   After describing the circumstances of the offence described above, the sentencing judge noted that the victim had suffered extensive injuries. [2] He further described the applicant’s involvement in the offence as “impulsive” and as involving,

2. [9]

   In relation to the assessment of objective seriousness, the judge concluded: [4]

3. [10]

   As to the personal circumstances of the applicant, the judge found:

4. [11]

   Given the complaint as to the unwillingness of the judge to make a finding as to likelihood of reoffending, it is convenient to set out separately the findings in that regard. First, the judge dealt with the applicant’s prospects of rehabilitation, which he assessed as “good”. The judge stated: [10]

5. [12]

   Later, the judge repeated this assessment, stating: [11]

6. [13]

   Despite the finding with respect to “prospects of rehabilitation”, a phrase which looks to the future, the judge made a separate finding as to the risk of reoffending, in the following passages: [12]

7. [14]

   The judge returned to that issue when considering a direction in relation to service of the proposed sentence of imprisonment by way of an intensive correction order.

Specific challenges

1. [15]

   Apart from the failure to order that the sentence be served by way of an ICO, the only challenge to the inferences drawn by the sentencing judge as to the characteristics of the applicant was a statement by the judge that he was “not able to make a finding that he is unlikely to reoffend”: ground 2. Ground 2 also alleged that the finding that the only appropriate sentence was one of imprisonment was not reasonably open. However, that challenge was not pressed at the hearing of the appeal.

2. [16]

   With respect to the risk of reoffending, the judge adopted the finding in a Sentencing Assessment Report, prepared by a community corrections officer, that:

3. [17]

   Following that indication of “risk assessment”, the officer stated in the Report:

4. [18]

   The applicant contended that the negative finding was “not reasonably open” and was “contrary to the evidence”. [13] The submissions for the applicant focused on the affirmative findings that he had good prospects of rehabilitation and a medium to low risk of reoffending. But these findings (and the evidence in support of them) did not dictate a conclusion that the applicant was unlikely to reoffend. Nor was this finding critical to the decision as to whether to impose an ICO.

5. [19]

   It may be inferred that the judge, in not being satisfied that the applicant was “unlikely to reoffend”, was not satisfied as to the mitigating factor identified in those terms in s 21A(3)(g) of the Sentencing Act. This was an evaluative finding, based on imprecise criteria. There was no basis for this Court to interfere with such an assessment.

6. [20]

   Ground 3 alleged that the judge erred in law in categorising the grant of an ICO as an “act of leniency”. There are two responses to that submission. The first is that, were an ICO not seen as a more lenient sentence than the same period served in custody, there would be no application for leave to appeal. Secondly, whether or not one thinks that the proposed supervision plan amounts to “intensive correction”, it would have been vastly less intrusive than a fulltime deprivation of liberty.

7. [21]

   This description has been adopted by this Court on numerous occasions. As Johnson J stated in R v Cahill, [14] “[t]his Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence”. To similar effect Gleeson JA held in Zheng v R: [15]

8. [22]

   The criticism of the sentencing judge’s use of the word “leniency” in describing the effect of an ICO as a form of imprisonment is without substance.

Consideration of ICO

1. [23]

   The power to make an intensive correction order is contained in s 7 of the Sentencing Act, which relevantly provides:

2. [24]

   The focus of the applicant’s submissions was on the requirements of s 66 (in Pt 5, Div 2) which provides:

3. [25]

   There is, as this Court explained in R v Fangaloka, [16] and as accepted by the High Court in Stanley v Director of Public Prosecutions (NSW), [17] a three-stage process resulting from the combined operation of ss 7 and 66, namely:

4. [26]

   The operation of s 66 was the subject of the High Court’s consideration in Stanley, the question being whether a District Court judge had so misconceived the operation of s 66 that she had failed to exercise her sentencing function.

5. [27]

   The nature of an “intensive correction order” is explained by three aspects of the statutory scheme. First, the sentence of imprisonment is to be served “by way of intensive correction in the community”, rather than in custody: see s 7(1). Secondly, it follows that no purpose is served by a non-parole order which limits the period of a sentence of imprisonment which must be served in custody before release into the community, and one is not to be fixed: see s 7(2).

6. [28]

   Thirdly, the nature of the “intensive correction” which the offender is to undergo turns on the conditions under which he or she is released into the community. As provided by s 72, there are “standard conditions”, “additional conditions” and “further conditions”. The standard conditions, identified in s 73 are as follows:

7. [29]

   As provided in the note to s 73, the obligations imposed by the standard conditions are set out in the Crimes (Administration of Sentences) Regulation 2014 (NSW), Pt 10, Div 2. The general supervision condition is identified in cl 187 in the following terms:

8. [30]

   The Regulation also provides for an obligation under a home detention condition (cl 189), an electronic monitoring condition (cl 189A), a curfew condition (cl 189B), a community service work condition (cl 189C) and a rehabilitation or treatment condition (cl 189D). There are also requirements in respect of less intrusive obligations. It may be seen that the substantive restrictions are to be found in subcl (1)(c) and are limited to certain reasonable directions of a community corrections officer. (There may be an issue as to whether a direction which might fall within an additional condition set out in s 73A(2) of the Sentencing Act, which has not been imposed by the Court, can be the subject of direction by a community correction officer as a “standard condition” of “supervision”.)

9. [31]

   Turning to the authorities, it should be noted that the judgment of the High Court in Stanley post-dated the sentencing in the District Court, as did the reasoning of this Court in Zheng. It followed that the assistance of passages in the reasoning in Stanley and Zheng was not available to the sentencing judge. On the other hand, the judge was taken to the reasoning of this Court in Casella v R [19] and in Mandranis v R. [20] On this appeal, the applicant did not submit that the reasoning in those decisions misconstrued s 66. As the submissions pointed out, Simpson AJA (consistently with Stanley) had explained in Mandranis that the paramount consideration identified in s 66(1) was not overridden by what appeared to be a subordinate principle set out in s 66(2), nor was an ICO excluded, unless a favourable opinion were reached in accordance with s 66(2). [21]

10. [32]

    In a passage from Casella, cited in written submissions to the sentencing judge, Beech-Jones J stated (Bathurst CJ and N Adams J agreeing):

11. [33]

    That approach was important in this case because the sentencing judge (as explained below) appears to have found the s 66(2) comparison to be neutral, or unable to be resolved on the evidence, but did not treat s 66(1) as therefore inapplicable.

12. [34]

    Further in Mandranis, Simpson AJA stated:

13. [35]

    The analysis of s 66 in the joint reasons of the majority in Stanley appears at [71]-[77]. The Court agreed with the subordination of other considerations to “community safety” in deciding whether to impose an ICO, [23] approving the analysis in Mandranis set out above. Turning to the operation of s 66(2), the joint reasons continued:

14. [36]

    Finally, the applicant took the Court to the succinct statement of the effect of Stanley in Zheng:

15. [37]

    With the possible addition of a reference to Stanley at [77], this summary should be accepted. The critical question is whether, and if so in what degree, the sentencing judge departed from this prescription.

16. [38]

    The sentencing judge correctly undertook the three-step process, first concluding that the only appropriate sentence was one of imprisonment, [25] then determining the length of the sentence, [26] and then proceeding to consider an ICO. [27] It is appropriate to set out the reasoning at the third step in full:

17. [39]

    Apart from the categorisation of an ICO as an element of “leniency”, which has been addressed above, the applicant focused his submissions on the appeal on two aspects of this reasoning. The first was the finding that serving the sentence in full-time custody “is not more likely to address his risk of reoffending”. That was in substance an inconclusive finding as to the factor identified in s 66(2), determining, in effect, that the comparative process could not be resolved on the evidence. What the judge did not say expressly was that serving the sentence in the community would be more likely to address his risk of reoffending. However, having correctly identified the matter to be addressed under s 66(2) as “whether the making of such an order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending” (emphasis added), the neutral finding should be understood as leaving the weighing process unresolved. Such an outcome was expressly envisaged by Stanley at [76]. Although it may be implicit in Stanley that such an outcome will be the exception rather than the rule, the assessment will often be highly speculative. In this case no sufficient basis has been established to overturn that finding.

18. [40]

    By way of an aside, it may be noted that the joint reasons in Stanley also observed that “[t]he issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety”. [28] The applicant did not rely on that matter because he emphasised what he identified as an over-reliance by the judge on the violence involved in the attack. There is no doubt that that was the relevant risk to community safety.

19. [41]

    As Stanley explained, the s 66(2) evaluation is not decisive and was not treated by the sentencing judge as decisive, or as the end of the process. Consistently with Mandranis (and Stanley), had the judge considered that serving a sentence in full-time custody was more likely to benefit community safety than serving the sentence in the community, that finding would not have foreclosed the possibility of an ICO. However, because it was not made, that issue did not arise. On the other hand, if the judge had been satisfied of a contrary position, namely that serving a sentence by way of an ICO was more likely to address the risk of reoffending, that would have been a powerful consideration in favour of an ICO. However, as that finding was not made either, any further question which would have flowed from that finding did not arise.

20. [42]

    The applicant’s written submissions suggested, or at least implied, that the fact that there was a “medium to low risk of reoffending”, and other factors supporting his prospects of rehabilitation, that there was error in adopting this approach. To achieve that conclusion, having identified the neutral assessment as to the risk of reoffending, the submissions continued: [29]

21. [43]

    This was an example of selective quotation. The last sentence in [76] in Stanley contrasted the situation with that which exists where the Court cannot be satisfied as to which course will be more significant, and continued:

22. [44]

    What followed was not [73] (as quoted), which had come earlier, but an entirely separate consideration of aspects of community safety which underpin general purposes of sentencing. The submission, in the terms put forward, should not be accepted. There was no error in the approach adopted by the sentencing judge in this regard.

23. [45]

    One factor which was not addressed by the judge in this context was the nature of the conditions which might be imposed on the applicant under an ICO. Although the community corrections officer assessed the applicant as “suitable to undertake community service work”, no specific recommendation was made as to such a condition. The officer did, however, recommend a condition that the applicant “undertake and complete the ‘Community of Inquiry into Pacific & Maori Family Matters’ program”. It was, of course, open to the judge to impose other conditions, but, while the applicant accepted before the sentencing judge that “stringent conditions” were possible, [30] apart from the Family Matters program and willingness to undertake community work, no specific condition was proposed; the prosecutor submitted that an appropriate sentence would exceed two years and hence an ICO would not be available.

24. [46]

    It is clear from the reasoning of the sentencing judge that close attention had been paid to the Sentencing Assessment Report. [31] The judge expressly noted the steps that had already been taken with respect to programmes in relation to anger management, mental health and drug use, and the applicant’s family and community connections. There was, however, no evidence as to the extent to which programmes might be available in the community under an ICO which could not be replicated in prison.

25. [47]

    What is clear, however, is that the sentencing judge was focused upon the significant level of violence involved in the offence. It is clear that he considered the propensity to violence to be the primary risk to community safety. He expressly identified community safety as the paramount consideration. [32] At its best, the respondent submitted, the applicant sought to identify error in the following statement in the judge’s reasons: [33]

26. [48]

    The applicant’s submission was, in substance, that if general deterrence “required” that outcome, then community safety had not been given paramount consideration. Senior counsel for the applicant denied that the case turned on a single word or phrase, noting that throughout his reasons, the judge had overtly given weight to general deterrence. Thus, in determining that the only appropriate sentence was one of imprisonment, the judge had stated: [34]

27. [49]

    Accepting that the judge did indeed give weight to general deterrence in declining to impose an ICO, the applicant’s submission seeks to draw a bright line between community safety and other purposes of criminal sentencing. Of the seven purposes identified in s 3A of the Sentencing Act, there may be tensions between some, or between some in some circumstances, but often they will militate in favour of the same outcome. While it is true that s 66(2) addresses that element of community safety which concerns the individual offender’s risk of reoffending (in a particular way), as Stanley recognised, that is not to exclude other aspects of sentencing which may affect community safety, nor purposes such as general deterrence which do not focus upon the individual but may tend to protect community safety. It was not an error to take general deterrence into account: s 66(3) permitted that course. The decision as to whether or not to impose an ICO is not to be determined solely by reference to an assessment of the course more likely to address the offender’s risk of reoffending; and when that course cannot be identified, other mandatory considerations will become significant and possibly decisive.

28. [50]

    To reiterate what was said in Stanley at [76]:

Conclusion

1. [51]

   In this matter there should be a grant of leave to appeal against sentence. Although the sentencing judge expressly identified the exercise required to be undertaken under s 66 of the Sentencing Act, the fact that the judgment was given before the High Court delivered reasons in Stanley, and before the decision of this Court in Zheng, makes it appropriate to consider whether the principles were correctly applied.

2. [52]

   For the reasons explained above, the sentencing judge did not err in stating or applying the principles. It was not suggested that a sentence of imprisonment by way of full-time custody was manifestly excessive, but only that there had been error in applying s 66. As error in that respect was not made good, the appeal must be dismissed.

3. [53]

   I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal from the sentence imposed in the District Court on 14 November 2022.

   2. (2)

      Dismiss the appeal.

4. [54]

   WALTON J: I have had the advantage of reading the draft judgment of Basten AJA in this matter. I agree with his Honour’s reasons for judgment and proposed orders, but I wish to make some further brief observations.

5. [55]

   The challenged phrase in the sentencing judgment (at p 26) – “the weight to be given to general deterrence here requires that the sentence be served by way of full-time custody” did not constitute, in my view, reasoning demonstrative of a failure to afford community safety the status of a paramount consideration in reaching a determination to impose a sentence of full-time imprisonment.

6. [56]

   I agree with the submission advanced by the Crown that his Honour’s reasoning in that respect, if viewed in the light of the whole of the sentencing judgment, simply conveyed the weight he gave to general deterrence in the context of a violent road rage offence as part of considerations arising in s 66(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”) and did not indicate his Honour had failed, in the exercise of his discretion in sentencing the applicant, to take into account all matters required under s 66 of the Act, including community safety as a paramount consideration (under s 66(1)).

7. [57]

   That approach is consistent with the third step to be undertaken by a sentencing court prior to the making of a final order by which a sentence of imprisonment may be imposed under the Act, as discussed by the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [59] and [77]. In the present circumstances wherein the course more likely to address the offender’s risk of reoffending could not be identified (as discussed in the judgment of Basten AJA at [49] and [50]), community safety as a paramount consideration was taken into account by the sentencing judge and other mandatory considerations then assumed real significance. No House v R (1936) 55 CLR 499; [1936] HCA 40 error has been established by the applicant.

8. [58]

   HAMILL J: I have had the advantage of reading the reasons for judgment of Basten AJA. I have also read the short concurring judgment of Walton J. I agree with the orders proposed by Basten AJA essentially for the reasons given by his Honour.

9. [59]

   As Basten AJA notes, the sentencing Judge did not have the benefit of the High Court’s decision in Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, or the more recent and helpful summary of that decision provided by Gleeson JA in Zheng v R [2023] NSWCCA 64, but his Honour was referred to the earlier decisions of this Court in Casella v R [2019] NSWCCA 201 and Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97. As I read the judgment of Buscombe DCJ, the reasoning process his Honour undertook was in almost precise accord with the process approved by the majority in Stanley v Director of Public Prosecutions and explained by Simpson AJA in Mandranis v R.

10. [60]

    His Honour first concluded that no penalty other than a sentence of imprisonment was appropriate. His Honour then determined the length of the sentence and, having concluded that the sentence would be less than two years, considered the imposition of an intensive correction order (“ICO”).

11. [61]

    In undertaking that third step, his Honour proceeded – correctly and in accordance with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – on the basis that community safety was the paramount consideration and, in doing so, made an evaluation of which mode of serving the sentence was more likely to address the applicant’s risk of re-offending. His Honour’s commendably transparent observation that “it would appear … that making the offender serve the sentence in full-time custody is not more likely to address his risk of re-offending” did not compel a conclusion that an ICO was the correct outcome. So much is clear from the majority judgment in Stanley v Director of Public Prosecutions at [75]-[76]. While Buscombe DCJ made a favourable evaluation of the applicant’s prospects of rehabilitation, he stated plainly that because of “the serious nature of the violence involved in this offence and his assessed risk of reoffending, I am not able to make a finding that he is unlikely to reoffend”.

12. [62]

    There was no legal error in his Honour’s reasoning. It is not to the point that it was open to his Honour, in the circumstances of this finely balanced and difficult sentencing decision, to impose an ICO or that another sentencing Judge, or a Judge of this Court, may have reached a different conclusion.

13. [63]

    As I have said, I generally agree with the reasons provided by the presiding Judge for the conclusion that leave to appeal should be granted but that each of the grounds of appeal must be rejected and the appeal dismissed.