Ramos-Malo v R

1. [1]

   THE COURT: Dahcell Marco Ramos-Malo seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him by his Honour Judge Bennett SC at the Sydney District Court on 4 December 2019. Mr Ramos-Malo pleaded guilty and was sentenced for four offences, receiving an aggregate sentence of 10 years imprisonment commencing on 8 September 2018 with a non-parole period of 6 years expiring on 7 September 2024.

2. [2]

   The offences for which Mr Ramos-Malo was sentenced, the maximum penalties and his Honour’s indicative sentences, are described in the following table:

3. [3]

   Mr Ramos-Malo’s notice of appeal was filed out of time. The Crown does not oppose a grant of leave. Mr Ramos-Malo relies upon the following grounds:

Facts

1. [4]

   His Honour recited the agreed facts in considerable detail. It is sufficient for present purposes to refer to the following matters.

2. [5]

   On the evening of 20 July 2018, Troy Taylor and Anthony Hayward attended the Carousel Inn at Rooty Hill. They drank alcohol and became intoxicated. At around 1.00am, the men became involved in what was then limited to a heated verbal exchange in the hotel gaming area with Salec Sua. Shortly thereafter, Mr Taylor and Mr Hayward were confronted in the outside gaming area of the hotel premises by Mr Sua, Mr Ramos-Malo, Mr Vaafusuaga, Pio Misa, Timothy Willett and a man called Lausii.

3. [6]

   In due course, Mr Misa hit Mr Hayward a number of times with a wooden chair leg. Mr Hayward sustained lacerations to his head but declined a paramedic’s advice to attend hospital.

4. [7]

   Mr Ramos-Malo then produced a hammer from inside his jacket and struck Mr Taylor on the head with it a number of times. Mr Vaafusuaga then began punching Mr Taylor as well. When Mr Taylor fell to the ground, Mr Ramos-Malo stomped on his head. This occurred multiple times. Mr Taylor was left lying unconscious for about 30 seconds in a pool of blood. He sustained a non-displaced fracture to the right side of his skull near his temple, fractures to his nose, a displaced nasal septum, two right sinus wall fractures, fractures to his eye socket, facial lacerations and wounds to his ears as the result of having his earrings pulled out. He was taken to hospital and discharged that afternoon.

5. [8]

   Shayne Turner was the manager on duty at the hotel. He was called to attend shortly before these events occurred. He remonstrated with the assailants. Mr Ramos-Malo then approached Mr Turner and hit him in the face with a wooden chair leg. Mr Turner fell to the ground, unconscious, and began to bleed from his mouth and nose. Mr Taylor sustained a comminuted depressed fracture of the anterior wall of his right maxillary antrum and associated severe bruising. He was taken to hospital.

6. [9]

   Mr Ramos-Malo then re-entered the gaming area and struck Mr Hayward on the head with the chair leg.

7. [10]

   About seven weeks later, Brendon Paton left the Penrith RSL Club at around 1.00am and started walking to the Panthers Leagues Club to meet his father. He came across Tyrone Glover who he later learned had just been ejected from Panthers. Mr Glover asked him for a cigarette. Mr Ramos-Malo then walked up to Mr Paton. Mr Glover then suddenly said to him, “Give us some fucking money for a taxi!”. Mr Glover and Mr Ramos-Malo then became aggressive, repeatedly threatening to harm Mr Paton. Mr Paton gave Mr Ramos-Malo his mobile phone which was locked. The phone was then smashed.

8. [11]

   Mr Ramos-Malo then suddenly produced a knife. He held it to the side of Mr Paton’s stomach in a stabbing motion. Mr Glover told Mr Paton to empty his pockets and take off his clothes. He was punched several times by Mr Glover as he did so. Mr Ramos-Malo then held Mr Paton against a brick wall with the knife pointed at him, as Mr Glover went through his clothing. The offenders took Mr Paton’s bank cards, Medicare card, mobile phone, Bluetooth speaker, jacket and gold ring. He was further threatened and told to cross the road and jump a fence.

9. [12]

   Mr Paton was severely traumatised by this incident. He sustained minor bruising under his eyes. He sustained a haemorrhage below his left eye.

Findings on sentence

1. [13]

   His Honour found that the offence of wounding Mr Taylor with intent to cause grievous bodily harm fell marginally above the mid-range. His Honour considered that the violence used, involving the use of a hammer, was extreme and the injuries inflicted were very serious. Mr Ramos-Malo’s culpability in what his Honour referred to as “this misconduct” was said to be at the “highest level”.

2. [14]

   His Honour found that the offence of assault of Mr Hayward occasioning actual bodily harm in company was just below the mid-range. Mr Ramos-Malo had no significant role in the initial assault but later returned and struck Mr Hayward with the chair leg. The offence was aggravated by the use of that weapon. Although there was some provocation, his Honour found that the attack could not be justified. The like offence committed against Mr Turner was found to fall near the mid-range. Mr Turner did not provoke the attack and was an innocent bystander performing his duties at the hotel.

3. [15]

   His Honour found that the September offence, involving both the application of force and the humiliation of Mr Paton, fell towards the mid-range. Mr Paton was vulnerable when confronted, although not in the sense contemplated in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

4. [16]

   His Honour noted that Mr Ramos-Malo had a record that included two offences of driving whilst suspended, driving with a mid-range prescribed concentration of alcohol and being in possession of a spray can. He received probation in 2016 for a robbery in company committed as a juvenile the previous year. His Honour found that these offences had a limited role to play but that Mr Ramos-Malo had a propensity for anti-social behaviour.

5. [17]

   Mr Ramos-Malo wrote a letter to the Court expressing regret for his offending and disgust for his conduct. His Honour concluded that this self-representation as a kind, fair, humble and caring young man stood in stark contrast to his behaviour he exhibited in the July offences.

6. [18]

   Mr Ramos-Malo’s childhood lacked stability. His parents separated when he was a toddler and his mother’s new partner abused him psychologically and physically. Mr Ramos-Malo had some ability as a musician. He was working as an apprentice roof tiler when he was arrested.

7. [19]

   His Honour referred to Mr Ramos-Malo’s history of generalised anxiety and depression, which included an attempted suicide followed by involuntary admission and counselling. He has a history of substance abuse, acknowledged to be a factor contributing to his offending. Mr Ramos-Malo has used cannabis and alcohol since he was 15. He later started using ice when he was 19, as well as cocaine and MDMA.

8. [20]

   References were provided to his Honour, and were referred to in his Remarks on Sentence. Mr Ramos-Malo was on conditional liberty in September as the consequence of a s 9 bond and by reason of a grant of bail for the July offences.

9. [21]

   His Honour was satisfied that Mr Ramos-Malo had demonstrated unqualified and genuine contrition and remorse and that there were strong prospects for his rehabilitation. His Honour also took account of his youth and recognised his expression of insight into his offending. He was given an uncontroversial discount of 25% for his early pleas of guilty. With respect to the September offence, his Honour noted that general and specific deterrence were relevant and that it was necessary to recognise the harm caused and to denounce what his Honour called “deplorable behaviour”. His Honour found special circumstances on the basis of Mr Ramos-Malo’s youth, the progress he had made in custody, the desirability of providing for a longer period of supervision in the community to consolidate the improvements he had already made and the limited significance of his criminal record. His prospects of rehabilitation and expressions of remorse were also relevant in this respect.

Grounds 1 and 2

1. [22]

   In my opinion, these grounds are misconceived. Mr Ramos-Malo’s appeal is against his aggregate sentence and does not lie with respect to any indicative sentence referred to by his Honour. So much has been consistently recognised, as for example by Schmidt J in DS v R [2017] NSWCCA 37 at [64] as follows:

2. [23]

   Her Honour’s reference to JM v R bears repeating:

3. [24]

   To the extent that Mr Ramos-Malo wishes to refer to his Honour’s choice of an indicative sentence, he can properly do so only in the context of a consideration of the remaining grounds of appeal. The matters to which he refers in support of this ground of appeal can therefore be treated for the purposes of grounds 3 and 4 as a complaint that in sentencing Mr Ramos-Malo, his Honour failed to pay any or any sufficient regard to the guideline judgment in Henry at [161]-[165]. However, in describing the perceived complaint in those terms, it should be understood that Henry is no more than a guideline and is not to be treated as some kind of grid or framework from which a sentencing judge cannot depart without error.

Ground 3

1. [25]

   Jimmy Vaafusuaga pleaded guilty and was sentenced to imprisonment for 4 years with a non-parole period of 2 years for wounding with intent to cause grievous bodily harm. That sentence takes into account an offence of assault occasioning actual bodily harm in company on a Form 1. He was sentenced by his Honour on 4 December 2019, at the same time as Mr Ramos-Malo.

2. [26]

   The starting point for a comparison between the sentences imposed upon Mr Ramos-Malo and Mr Vaafusuaga must be a consideration of what each of them did. Although this is described earlier, it is important to observe that Mr Ramos-Malo struck Mr Taylor with a hammer “a number of times” and then proceeded to stomp on his head “while he lay on the ground”. Mr Vaafusuaga’s involvement was limited to punching Mr Taylor in the back of the head as he fought off Mr Ramos-Malo’s hammer attack and thereafter to punching him “multiple times in the head while he lay on the ground”. Mr Taylor was “left lying in a pool of blood, unconscious on the ground for at least 30 seconds”.

3. [27]

   His Honour outlined Mr Vaafusuaga’s subjective case in some detail as follows:

4. [28]

   His Honour described Mr Vaafusuaga’s role in the wounding offence in these terms:

5. [29]

   The Crown helpfully summarised the relative similarities and differences between Mr Ramos-Malo and Mr Vaafusuaga in the following table:

6. [30]

   Mr Ramos-Malo submitted that, despite the similarities in their circumstances on the one hand, and accepting his Honour’s assessment of the differences in their objective criminality on the other hand, the disparity between the sentence imposed on Mr Vaafusuaga for the wounding offence and the sentence indicated by his Honour for the same offence committed by him could not be justified. His Honour found that Mr Ramos-Malo’s offending was marginally above the mid-range whereas Mr Vaafusuaga’s offending was well below that. Mr Ramos-Malo suggested that the starting points chosen by his Honour were therefore “radically”, and presumably unjustifiably, different.

7. [31]

   It is apparent from his Honour’s clear and comprehensive reasons that he formed the view that Mr Ramos-Malo’s conduct was objectively very serious. Having regard to the possible range of behaviour contemplated by s 33, that view is not out of step with his Honour’s characterisation of the offending as marginally above the mid-range. However, Mr Ramos-Malo maintains in effect that the sentence his Honour has indicated he would have imposed for the wounding offence committed by him is disproportionately severe when compared to Mr Vaafusuaga’s actions in the wounding of Mr Taylor. Although Mr Ramos-Malo does not, and cannot, appeal from that indicative sentence, he maintains that it provides an insight into his Honour’s approach to the aggregate sentence and demonstrates his Honour’s failure to afford like punishment for like offences.

8. [32]

   In response to Mr Ramos-Malo’s contention, the Crown maintains that the different levels of participation in their common offending explained the disparate sentences. On the one hand, the violence used against Mr Taylor by Mr Ramos-Malo was extreme: the use of a hammer to inflict blows to his head is a sufficient indicator of this. The fact that Mr Ramos-Malo then proceeded to stomp on Mr Taylor’s head was said to be a violent continuation of this extreme conduct. But for the intervention of a co-offender, Mr Taylor appeared likely to have received further blows with the hammer.

9. [33]

   The Crown also submitted that there were significant differences in the offenders’ respective subjective cases. As indicated in the table, Mr Vaafusuaga had the benefit of a clean criminal record, whereas Mr Ramos-Malo had a limited history of offending, as well as being on a bond. His Honour found that both men had the benefit of favourable findings on rehabilitation and contrition, but in the case of Mr Vaafusuaga, specific deterrence had a more limited role to play. Mr Vaafusuaga’s sentence was also reduced on account of his compliance with stringent bail conditions and time spent in immigration detention. The Crown submitted that Mr Ramos-Malo had not in these circumstances demonstrated the existence of a justifiable sense of grievance.

10. [34]

    However, on balance, and accepting that the hammer and the stomping by Ramos-Malo was serious offending and worse than that of Mr Vaafusuaga, we consider that his Honour erred in assessing Mr Vaafusuaga’s moral culpability as well below Ramos-Malo.

11. [35]

    Mr Vaafusuaga’s offending was still serious. He punched Mr Taylor in the head from behind as he attempted to defend himself from the hammer blows. It was at that point that Mr Taylor fell to the ground, and Mr Vaafusuaga punched him multiple times, including when he was defenceless on the ground. On one view, the sentence imposed upon Mr Vaafusuaga was lenient, probably assisted by the Crown’s submissions and his strong subjective case.

12. [36]

    We are of the view that in all of the circumstances, the discrepancy in the overall sentences is not fairly explained and Mr Ramos-Malo has established that he has a justifiable sense of grievance concerning the sentence imposed on Mr Vaafusuaga.

Grounds 4 and 5

1. [37]

   Having regard to the view we have formed with respect to Ground 3, it is unnecessary to deal with these grounds.

Resentence

1. [38]

   Error having been found, it is necessary to exercise the discretion to re-sentence.

2. [39]

   Mr Ramos-Malo swore an affidavit dated 25 February 2021 which was read without objection on the “usual basis”: (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4]). It is relevant to his resentencing and is in the following terms:

3. [40]

   This material is consistent with and supports his Honour’s finding that Mr Ramos-Malo has strong prospects of rehabilitation, especially in combination with his demonstration of unqualified contrition and remorse. In all other respects, we adopt his Honour’s findings summarised above, including the finding of special circumstances. Mr Ramos-Malo is to be sentenced on the basis of the agreed facts.

4. [41]

   We also agree that an aggregate sentence should be imposed. In our view, the appropriate aggregate sentence is 8 years imprisonment commencing on 8 September 2018 with a non-parole period of 4 years and 9 months expiring on 7 June 2023. As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, we would specify an indicative sentence for the offence of wound Troy Taylor with intent to cause grievous bodily harm of 6 years with a non-parole period of 4 years. We would adopt the indicative sentences for the balance of the counts as indicated by his Honour.