Kaisuva v R; Soro v R

1. [1]

   BASTEN JA: In each of the matters now before the Court, I agree with Davies J that the applicant should be granted leave to appeal. With the following additional observations, I also agree that error has been established on the part of the sentencing judge in each case and the offender must be resentenced. I agree with Davies J that the appeal should be dismissed because, in each case, no lesser sentence is warranted.

2. [2]

   First, in relation to Mr Kaisuva, it was common ground that he had attended Odyssey House; it was not factually correct to doubt that evidence. However, the error verges upon infelicity of expression in an ex tempore judgment. While it was wrong to imply that there was any doubt as to his attendance at Odyssey House, the judge was entitled to give little weight to that evidence in support of a favourable finding as to rehabilitation, in the absence of a report from Odyssey House as to his progress.

3. [3]

   Secondly, with respect to Mr Soro, there is, again, no doubt an error in asserting that the offender had not told the truth to a counsellor in stating that he had not drunk alcohol since the night of the offending conduct. The possibility of alternative findings was available, but not addressed. Nevertheless, the psychologist was sceptical as to the proposition that Mr Soro would successfully foreswear abuse of alcohol in the future; the judge was equally entitled to be sceptical of that proposition.

4. [4]

   Thirdly, I would not find error in relation to the claim of “extra curial punishment”. The fact that an offender has injured himself in the act of committing the crime does not constitute “punishment” of any kind within the ordinary meaning of that ordinary English word. There are other reasons why a sentencing court might, in some circumstances, accord leniency to an offender who is injured: the fact that the injury occurred in the course of committing an offence might persuade the court not to do so, but such factors are within the discretionary judgment of the sentencing judge. There was no error in refusing to take that matter into account. I entirely agree with Davies J that the injury does not constitute “a significant mitigating factor.” If the sentencing judge had used the same terminology he would not have erred. If there were an error in his terminology, it would not be a material error and would not require that Mr Soro be resentenced.

5. [5]

   Subject to these further observations, I agree with the reasoning of Davies J. I would dismiss the appeals.

6. [6]

   DAVIES J: On 26 August 2020 the applicants, Jacob Kaisuva and Viliame Soro, pleaded guilty in the Local Court to one count of aggravated break and enter dwelling and commit a serious indictable offence being assault occasioning actual bodily harm in company. The circumstance of aggravation was that they knew a person was present at the premises. The offence is contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty is 20 years’ imprisonment and there is a standard non-parole period of five years’ imprisonment.

7. [7]

   The applicants came before Judge Colefax SC in the District Court for sentence on 17 November 2020. On that day his Honour imposed on Mr Kaisuva a sentence of three years’ imprisonment commencing 15 November 2020 and expiring 14 November 2023 with a non-parole period of 18 months expiring 14 May 2022. Judge Colefax imposed on Mr Soro a sentence of three years and two months’ imprisonment commencing 5 November 2020 and expiring 4 January 2024 with a non-parole period of one year and seven months expiring 4 June 2022.

The offending

1. [8]

   On 25 January 2020, the applicants were drinking with Ms Adi-Salanieta Bole at her aunty’s house in Campbelltown. Her mother and a friend of her mother were also present. At some stage that night, Ms Bole cut her left foot on some broken glass. After this occurred, she, her mother and the two applicants went to the home unit where she lived with her mother at 6/88 Dumaresq Street, Campbelltown.

2. [9]

   After they arrived home, Ms Bole fainted or passed out. When she woke up, Mr Kaisuva asked her if she was okay and offered to take her to hospital, but she refused.

3. [10]

   At about 6:20am on 26 January, she left the apartment without telling the applicants she was going. She walked to Unit 10 in the adjoining unit block where Christian Lane lived. She knocked on his door but he did not answer. Because her foot was still bleeding, she left a trail of blood on the ground between the two units. She then walked to Campbelltown Police Station, where an ambulance was called to treat the cut on her foot.

4. [11]

   Shortly afterwards, the applicants tried to locate Ms Bole. They followed the trail of blood to the front door of Unit 10. One of them opened the unlocked screen door, and called out, demanding that the door be opened. They knocked, punched and kicked the front door. While doing so, Mr Soro fractured some bones in his hand.

5. [12]

   Mr Lane was woken by the yelling, the knocking and the kicking. He looked through the peephole in the door and saw the applicants. He told them to leave and said he would call the police. He then did so.

6. [13]

   The applicants asked, “Where is she?”, and at one point, one of the applicants said, “We’re going to fuck you up, did you hear that?”

7. [14]

   When Mr Lane did not open the door, the applicants walked down the stairs to the communal grass area between the apartment blocks. Mr Lane then opened the front door and yelled back at the applicants. Seeing that the door was open, the applicants walked quickly up the stairs to Unit 10, but Mr Lane closed the front door.

8. [15]

   The applicants then kicked the wooden door two or three times, causing the area around the door lock to break. They ran into the unit and began to search for Ms Bole. Mr Lane called out, “She’s not here”.

9. [16]

   Mr Kaisuva struck Mr Lane in the face, Mr Lane hit Mr Kaisuva back and yelled, “Please, leave me alone”. A fracas ensued and Mr Lane ended up on the ground with Mr Kaisuva on top of him. At this stage, Mr Soro, took a glass bottle from a table and smashed the bottle over Mr Lane's head. Mr Soro then kicked Mr Lane while he was on the ground.

10. [17]

    The applicants then searched each room inside the home unit, after which one of them said, "She's not here". They then left Unit 10 and returned to Unit 6.

11. [18]

    The police arrived shortly afterwards, and the applicants were arrested.

12. [19]

    Mr Soro was taken to Campbelltown Hospital to receive treatment for his injured hand.

13. [20]

    That day, Mr Kaisuva participated in an Electronically Recorded Interview of a Suspected Person (ERISP). He said that he had consumed a large amount of alcohol. He remembered being at the park but could not remember anything from when he arrived at the apartment complex.

14. [21]

    Mr Soro also participated in an ERISP. He said that Ms Bole, her mother and the two applicants had shared a box of Corona beer, a one litre bottle of Jack Daniels, a case of Tooheys New, a case of VB and some Carlton Draught cans. He had personally consumed approximately one full case of beer, to a level of intoxication that was probably 8/10.

15. [22]

    He said that Ms Bole, who was also intoxicated, had cut her foot, but he did not know how. He said that she had left the unit while he was outside on the balcony, and they did not know where she had gone. He said that they tried looking for her to protect her, in case something had happened to her. They traced her bloody footprints up the stairs to outside Unit 10. They were certain she was inside Unit 10.

16. [23]

    He said that he punched the door and felt the bone in his hand move back. He realised he had hurt his hand, and when he looked back to the door it was open. They went inside to look for Ms Bole. He could not remember assaulting Mr Lane.

17. [24]

    Mr Lane suffered the following injuries and disabilities:

18. [25]

    Mr Soro underwent surgery at Fairfield Hospital on 13 February 2020, when his right hand was wired for a fracture of his hamate bone, and fourth and fifth metacarpal bones.

Subjective matters

1. [26]

   Mr Kaisuva gave evidence at the sentence proceedings.

2. [27]

   Mr Kaisuva was born in Gosford to parents of Fijian heritage. During his early years, his family lived on the Central Coast, and then they moved back to Fiji. At age 11 he returned to Australia with his grandfather, and was placed under the care of an uncle. He said that he felt lost because he was away from his family and said it was a culture shock. He struggled with his identity and said that he was subjected to racism in high school.

3. [28]

   He has worked as a fruit picker and a forklift driver, but for the last nine years has worked as a welder on railway tracks.

4. [29]

   He told the psychiatrist, Dr Sam Calvin, that his family members were all religious and church going. He met his wife, who was the pastor’s daughter at church, and they have been married for 11 years. They have two children and at the time of sentence were expecting a third child.

5. [30]

   He reported a history of alcohol abuse that began when he was 16 or 17. He said he would drink with his friends every weekend and at parties. The alcohol use escalated in his twenties, when he described a binge pattern of use. He reported excessive craving, a gradual increase in tolerance to large quantities of alcohol, and a loss of control. He said that even if he wanted to stop alcohol, he was unable to do so because of the powerful effects of craving and withdrawal symptoms. Alcohol use had impacted on his marital relationship, and this had led to him staying away from home and drinking alcohol with his friends. Dr Calvin diagnosed Mr Kaisuva as suffering from a significant alcohol use disorder, and said his mental health issues were predominantly due to his alcohol addiction.

6. [31]

   Mr Kaisuva told Dr Calvin that when Ms Bole left the apartment without informing him or Mr Soro, they were concerned for her safety and wellbeing. He said that they followed the blood trail which led to Mr Lane’s house, and they then “acted stupidly”, thinking that her life was in danger.

7. [32]

   On the other hand, Mr Kaisuva told the author of the Sentencing Assessment Report (“KSAR”) that he believed Ms Bole was intimately involved with Mr Lane and was hiding in his apartment, and said that it was jealousy which influenced his offending behaviour. What was said to both Dr Calvin and the author of the KSAR did not sit easily with what he said in his ERISP, namely, that he could not remember anything from when he arrived at the apartment complex.

8. [33]

   Mr Kaisuva had a criminal record, including a group of motor vehicle offences which involved taking and driving a conveyance without the consent of the owner and driving in manner dangerous in 2006, some minor street offences in 2006, stealing property as a clerk or servant in 2007 for which he was given a suspended sentence of nine months’ imprisonment, robbery in company in 2007 for which he was sentenced to three years’ periodic detention, and some further motor vehicle offences in 2017.

9. [34]

   Mr Soro did not give evidence at the sentence proceedings. Information about him was derived from a report from Dr Katie Seidler and from his Sentencing Assessment Report (“SSAR”)

10. [35]

    Mr Soro was born and raised in Suva, Fiji. His family led an apparently subsistence lifestyle, and he described it as being very difficult to secure employment in Fiji. At times his parents found it hard to get enough food to feed the family.

11. [36]

    He and his family came to Australia when he was aged 15.

12. [37]

    He was one of eight children. His childhood and family experiences were positive, with basic care and development needs well met. There was no abuse or neglect. He said his family was a religious one that maintained an active involvement in their faith community. He said his parents had a good relationship, and he had a good relationship with them and with his siblings.

13. [38]

    He told Dr Seidler that he had generally been employed in construction, building maintenance and steel fixing. He had been consistently employed until he lost his last job because of the injury to his hand caused in the offending.

14. [39]

    Dr Seidler said that the most salient medical event in his history was when he was drunk and punched a window with his right arm. He sustained serious lacerations when he attempted to extricate his arm. The injury required surgical intervention.

15. [40]

    Dr Seidler said Mr Soro’s account of his alcohol use was confusing and often contradictory, and it was difficult to gain a clear picture of his consumption of alcohol. He first consumed alcohol at around the age of 18 years. He was adamant that his use of alcohol had not been indicative of dependence, nor was it necessarily problematic. However, he also made claims that he drank to excess on occasions, and had difficulties managing or regulating his consumption of alcohol.

16. [41]

    He said he would drink to the point of inebriation on social occasions, and he described being unable to regulate his drinking at these times, such that he would suffer lapses in memory. He also said that he would at times become involved in fights with others when drunk, but he denied being the one to initiate those fights. He told Dr Seidler that he had not consumed alcohol since his arrest, and he said that he did not think he would drink again.

17. [42]

    He was first exposed to cannabis at about the age of 18. He said he liked to smoke it because he found it relaxing, but stopped doing so about two months prior to the interview with Dr Seidler because he did not have enough money to purchase it. He denied ever being dependent on cannabis, nor did he endorse any psychotic symptomology associated with the use of it.

18. [43]

    In relation to the offending, he said that when the victim denied any knowledge about Ms Bole’s whereabouts, they assaulted him. He said he hit the victim over the head with an empty glass bottle, and did so because he believed that the victim was lying about the knowledge of the whereabouts of Ms Bole. Dr Seidler said he expressed seemingly genuine regret and remorse for his offending.

19. [44]

    Dr Seidler administered the Alcohol Use Disorders Identification Test Screening Instrument (AUDIT), which is a brief measure of problem and dependent use of alcohol. He was asked to score the AUDIT for the 12 months leading up to his offending. He scored a total of 21, which suggested that his consumption of alcohol during that period was both problematic and indicative of dependence.

20. [45]

    His criminal record commenced in 2004 when he was given a 12 month s 9 bond for assault occasioning actual bodily harm and destroying or damaging property. A condition of the bond was accepting the supervision of the Probation Service for drug and alcohol rehabilitation.

21. [46]

    In 2010 he was sentenced to imprisonment for an affray. Other offences for which he was convicted include three counts of using offensive language or behaving in an offensive manner in a public place in 2005, 2009 and 2010; destroying or damaging property in 2007 and 2015; driving with a mid-range PCA, being unlicensed and using an unregistered motor vehicle in 2009; possessing a prohibited drug in 2009 and 2015; further counts of driving whilst unlicensed and driving with a mid-range PCA in 2014; wilful and obscene exposure in a public place in 2015; and shoplifting in 2017.

22. [47]

    When Mr Soro saw Dr Seidler, he said that he could not recall his previous violent offence from 2004. He also blamed alcohol abuse for his criminal conduct, saying that he commits a crime when he is drunk.

Grounds of appeal

1. [48]

   Mr Kaisuva seeks leave to appeal against his sentence on the following grounds:

2. [49]

   Mr Soro seeks leave to appeal against his sentence on the following grounds:

(a) Jacob Kaisuva

1. [50]

   These grounds are considered together because the applicant submitted that the erroneous findings of fact resulted in the error in relation to objective seriousness.

2. [51]

   At the end of Mr Kaisuva’s evidence at the sentence hearing, the sentencing judge asked him a number of questions as follows:

3. [52]

   In his sentencing remarks, Judge Colefax said this:

4. [53]

   The applicant submitted that, in the circumstances, there was a proper basis for him to believe that Ms Bole may have been in danger, because she was a young, intoxicated female in a stranger’s apartment and had a significant injury to her foot. The applicant submitted further that he had an intimate interest in Ms Bole and was jealous that something may have been taking place inside the premises between Ms Bole and Mr Lane. In the circumstances, the applicant submitted that it was reasonable for him to be both concerned that Ms Bole might have been in danger and jealous of the victim. He submitted that these states of mind were not mutually exclusive and that it was wrong for the sentencing judge to suggest that the reasons were inconsistent and to reject his evidence as being dishonest and unreliable.

5. [54]

   The applicant submitted that the findings by the sentencing judge suggest that the applicant’s conduct was considered more objectively serious than it should have been. A finding that the applicant was motivated by concern for Ms Bole’s welfare would have mitigated the seriousness of the offence to some extent.

6. [55]

   The applicant submitted that the sentencing judge erred in his assessment of objective seriousness because of his erroneous finding in relation to the motivation for the offending. The applicant submitted that in the context of this type of offending, including the range of serious indictable offences and the circumstances of aggravation, the subject offence is less than mid-range seriousness.

7. [56]

   The Crown submitted that, if the applicant relied on his motivation being concern for Ms Bole that gave rise to the offending, that was a matter which would need to be proved by the applicant on the balance of probabilities. The Crown submitted that the sentencing judge’s findings have to be seen in the context that his Honour was not so satisfied.

8. [57]

   The Crown submitted that no submission had been made to the sentencing judge on behalf of the applicant that he was partly motivated out of a concern for Ms Bole. In that way, the Crown submitted, a new case is sought to be made in this Court contrary to what was said in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460.

9. [58]

   The Crown had submitted that the offences fell just within the mid-range of objective gravity, with Mr Soro’s offending slightly above that of Mr Kaisuva. In oral submissions, counsel for Mr Soro had submitted that the offence was below the mid-range, not at the very bottom, but towards the lower end. His Honour responded to that submission by saying although there might be some force in saying that it was below the mid-range, he would not accept that it was towards the lower end because of the use of violence.

10. [59]

    Counsel for Mr Kaisuva said to the sentencing judge that he simply adopted Mr Soro’s lawyer’s submissions “on all counts”, which must be taken to include the assessment of objective seriousness.

11. [60]

    The Community Corrections Officer said this in the SAR:

12. [61]

    In his report, Dr Calvin said:

13. [62]

    Both of those motivations were put forward after the event, because in his ERISP, the applicant said that he could not remember anything from when he arrived at the apartment complex.

14. [63]

    The sentencing judge quite properly drew the applicant’s attention to what his Honour considered were two totally different versions of his motivation, and gave him the opportunity to address that matter. The applicant had led no evidence concerning his motivation. His counsel did not seek to re-examine him arising out of the sentencing judge’s questions. No submissions were made about the issue that had been clearly raised by the sentencing judge. In particular, it was not suggested that the offending was mitigated on the basis that his Honour ought to accept that it was motivated by concern for Ms Bole.

15. [64]

    In his sentencing remarks, the sentencing judge did not find which explanation he accepted but noted that the applicant had provided inconsistent material about his motivation. Where a different explanation was given to two persons, where an opportunity was given to the applicant to address what was said to be the inconsistency, and where no submission was made on behalf of the applicant to assert that there was no inconsistency, no erroneous findings of fact were made by the sentencing judge. It was open to his Honour to have doubt about the applicant’s honesty and reliability in the circumstances.

16. [65]

    It would have been open to the sentencing judge to infer from the violence inflicted on Mr Lane and the threat that was made beforehand (see at [13] above) that the motivation for the offence was principally if not solely jealousy on the applicant’s part, but his Honour did not do so. Nor did he link the issue of motivation to the assessment of objective seriousness. If the applicant wanted a finding that his motivation was concern for Ms Bole, the onus was on him to demonstrate that. He was on notice that the judge would not on the evidence led reach that conclusion, even if it was a matter factored into objective seriousness.

17. [66]

    The applicant does not establish that any erroneous finding was made, nor that the issue led to any particular assessment of objective seriousness. In any event, the finding in relation to objective seriousness was open to the sentencing judge.

18. [67]

    I would reject these grounds.

19. [68]

    In his sentencing remarks, the sentencing judge said:

20. [69]

    When dealing with remorse, his Honour said:

21. [70]

    When addressing Mr Soro, his Honour said:

22. [71]

    When his Honour came to deal with special circumstances, he said that he would vary the statutory ratio for a number of reasons. In relation to Mr Kaisuva his Honour said:

23. [72]

    The applicant submitted that, by reason of the exchanges between the sentencing judge and the applicant’s counsel, the sentencing judge proceeded to sentence the applicant on the assumption that the nine sessions at Odyssey House had not been undertaken by him. The applicant submitted that the sentencing judge was not aware of the KSAR where enquiries had already been independently undertaken to confirm that the applicant had undertaken treatment at Odyssey House consistent with his evidence.

24. [73]

    The applicant submitted further that the sentencing judge overlooked that the applicant’s longstanding problem with alcohol was addressed during his time on remand by undertaking rehabilitation at Odyssey House which was ongoing. The applicant submitted that his Honour erred in that regard.

25. [74]

    The applicant sought to tender on the appeal a copy of a letter from Odyssey House dated 17 November 2020.

26. [75]

    The applicant submitted that the reason the sentencing judge did not accept that the applicant’s expressions of contrition and remorse were genuine was because of his Honour’s erroneous finding in relation to rehabilitation.

27. [76]

    The Crown submitted that the sentencing judge was aware of the evidence supporting the applicant’s attendance at Odyssey House. The Crown submitted that the sentencing judge’s criticism appears to have been directed at the lack of evidence regarding the applicant’s response to attempts at rehabilitation, as opposed to whether or not the applicant had attended Odyssey House.

28. [77]

    The Crown submitted, having regard to what was said in Elyard v R [2006] NSWCCA 43, that the applicant had failed to establish the necessary factors to demonstrate rehabilitation on the balance of probabilities.

29. [78]

    The Crown submitted that it was for the applicant to demonstrate remorse on the balance of probabilities and that he had not done so. The Crown submitted that the sentencing judge was not bound to accept sworn evidence from the applicant that he was remorseful.

30. [79]

    The applicant gave the following evidence:

31. [80]

    Towards the end of his evidence in chief, the applicant said that he had not been to his GP to obtain a Mental Health Care Plan (as the KSAR recommended) because he had not noticed the recommendation in the KSAR. The following exchange then occurred between the sentencing judge and the applicant’s counsel:

32. [81]

    There was no challenge by the Crown to the fact that the applicant had been to Odyssey House and undertaken a program there. In cross-examination the following exchanges occurred between the Crown and the applicant:

33. [82]

    During submissions the following exchange occurred:

34. [83]

    Just before his Honour came to deliver his sentencing remarks, Mr Moran said he had an application to make because:

35. [84]

    The letter sought to be tendered by the applicant at the hearing of the appeal appears to be the letter which did not reach the applicant’s representatives prior to the applicant being sentenced. The preliminary question is whether this letter should be received into evidence. In my opinion it should not be admitted. It is not fresh evidence but evidence which was not before the sentencing judge because appropriate arrangements were not made by the applicant’s lawyers prior to the sentence hearing. So much was acknowledged by his counsel (at [82] above). The letter should have been available to be put before the sentencing judge. It cannot be relied upon to demonstrate error on the judge’s part. However, error is otherwise apparent.

36. [85]

    Whilst his Honour did not have any report from Odyssey House giving any indication of any outcome from the applicant’s participation in the program to that time, there was unchallenged evidence from the applicant himself, and from the KSAR, that the applicant had engaged in the Odyssey House program, and that he had attended nine weekly sessions.

37. [86]

    That makes it all the more puzzling why his Honour referred to the applicant having “allegedly” gone to Odyssey House during submissions, and then in his remarks said, “It is said that you have attended Odyssey House”. This leads to the view that his Honour did not accept the applicant’s evidence of having done so, perhaps arising from the doubts his Honour expressed about the applicant’s credibility arising out of the inconsistent evidence concerning his motivation.

38. [87]

    His Honour could quite properly have found that, although the applicant attended nine sessions at Odyssey House, his Honour had no information from Odyssey House concerning the applicant’s progress to enable him to make an informed decision about the applicant’s prospects of rehabilitation. However, in the face of what was said in the KSAR about the applicant’s participation in the Odyssey House program (obtained or verified by the author of the KSAR from Odyssey House, as the KSAR makes clear), and in the light of the acceptance by the parties at the sentence hearing that he had so participated, there was no basis for the doubt expressed by his Honour in that regard. Such doubt has very likely affected his Honour’s assessment of the applicant’s prospects of rehabilitation.

39. [88]

    I would uphold grounds 3 and 4.

40. [89]

    It is clear that his Honour’s findings in relation to remorse concerned more than the applicant’s attempts at rehabilitation: see at [69] and [80] above. In the light of the fact that the applicant will be re-sentenced, it is not necessary to say anything more about remorse at this stage.

(b) Viliame Soro

1. [90]

   In his sentencing remarks, the judge set out the facts of the offending including what each of the offenders did in committing the offence. He then dealt separately with subjective matters in relation to each of the offenders, followed by a consideration of whether special circumstances applied to reduce the statutory ratio. Finally, his Honour indicated the sentences he would have imposed before applying the 25% discount each received for their early pleas. His Honour did not refer to parity or explain why he imposed slightly different sentences on each of the offenders.

2. [91]

   The applicant drew attention to what appeared in both his and the Crown’s written submissions before the sentencing judge in respect to the issue of parity. He submitted that the sentencing judge did not indicate in his remarks whether he accepted or rejected the parity submissions. The applicant submitted that it was unclear whether the difference in the sentences related to the age difference between the offenders, their subjective backgrounds, their differing roles in the offending, or all of those matters.

3. [92]

   The Crown submitted that his Honour‘s reasons made clear that for the most part each of the two offenders was alike as to the circumstances of their offending and their subjective cases, but where there were differences, those differences were made plain. In that way, the Crown submitted, it is clear that the sentencing judge took into account the submissions made by the parties on parity.

4. [93]

   In the Crown’s written submissions to the sentencing judge, under the heading “Parity”, the Crown submitted that the objective gravity of the offending was very similar for each of the offenders and that, overall, the offenders’ subjective cases were not dissimilar. The Crown then submitted:

5. [94]

   In the written submissions for Mr Soro, his solicitor said with respect to parity that Mr Soro was two years older than Mr Kaisuva, and that Mr Soro’s role in the assault was marginally higher than that of Mr Kaisuva given that he admitted to hitting the victim with the bottle and kicking him. The solicitor then drew attention to the different criminal histories of the two offenders.

6. [95]

   In her oral submissions Mr Soro’s solicitor said:

7. [96]

   Counsel for Mr Kaisuva said nothing about parity specifically, but said,

8. [97]

   It would have been helpful if the sentencing judge had said, even briefly, why he imposed different sentences on the two offenders. It must be remembered, however, that the sentencing remarks were delivered immediately after the conclusion of submissions, and it appeared to be accepted by all parties that Mr Soro’s role was slightly greater than Mr Kaisuva’s.

9. [98]

   It is reasonable to infer, therefore, that his Honour accepted the submission made on behalf of Mr Soro, and seemingly adopted on behalf of Mr Kaisuva, that there was a slight difference in their roles in the offending by reason of the fact that Mr Soro hit the victim over the head with the bottle and then kicked him. The slight difference in the sentences imposed (two months overall and one month non-parole) is clearly referable to that difference in the role of the offenders.

10. [99]

    I would reject ground 1.

11. [100]

    At the sentence hearing, the solicitor for Mr Soro both in her written and oral submissions sought to have a finding made that Mr Soro suffered extra-curial punishment as a result of the fracture to his right hand when he was pounding on the door to Mr Lane’s unit. During oral submissions, there was an exchange where his Honour said that the injury was not extra-curial punishment because Mr Soro did it to himself.

12. [101]

    In his sentencing remarks, when dealing with the offending, his Honour said:

13. [102]

    The applicant pointed to what was said in Quinn v R [2018] NSWCCA 297 at [266], and submitted that the harm suffered by him was incidental to the offending and not deliberately inflicted.

14. [103]

    The Crown directed attention to what Grove J said in Alameddine v R [2006] NSWCCA 317 at [18], that authorities on extra-curial punishment have generally dealt with situations where the punishment was caused by external forces, rather than the offender’s own actions.

15. [104]

    The Agreed Facts about this aspect of the incident state:

16. [105]

    In her report, Dr Seidler noted that Mr Soro reported that he lost his last job after his offending behaviour due to injury he sustained to his fingers in the offence, which reportedly took some months to heal.

17. [106]

    In Quinn v R [2018] NSWCCA 297 the applicant stabbed himself in the neck, rendering himself an incomplete C3-4 tetraplegic. The applicant, whilst accepting that mitigation of sentence is not generally warranted where an offender has intentionally caused injury to himself or herself, sought to argue that there was a lack of clarity in the authorities where the offender acted by reason of mental illness.

18. [107]

    Justice Hoeben CJ at CL (White JA and Fagan J agreeing) said at [266]:

19. [108]

    In Christodoulou v R [2008] NSWCCA 102, the offender injected himself with hydrochloric acid or battery acid resulting in permanent injury to his arm. That occurred after the offender had committed a number of offences against his wife and her home and at a time when he was actively resisting arrest by police and engaging in assaults upon the police.

20. [109]

    One of the grounds of appeal against his sentences was that the sentencing judge failed to take into account the injuries suffered by him in the course of committing the offences.

21. [110]

    Justice Grove (with whom Johnson J agreed) said:

22. [111]

    The third judge, Campbell JA agreed with what was said by Grove J except in relation to paragraph [42] of that judgment.

23. [112]

    The decision in Christodoulou was followed by this Court in Cvetkovic v R [2013] NSWCCA 66, where the offender stabbed himself after he had stabbed the victim.

24. [113]

    There is something distinctly unsatisfactory about mitigating a sentence because of a self-inflicted injury by an offender (even if not intentionally inflicted) in the course of committing the offence, particularly as the mitigating principle is known as extra-curial punishment, and ordinarily applies where the punishment is inflicted by a third party. However, the principle seems too firmly established in decisions of this Court and elsewhere to change.

25. [114]

    The present circumstances seem to fall clearly within what was said in a number of the cases, but most recently in Quinn. Mr Soro intended to punch the door, but he did not intend to injure his hand in the way he did. The facts would suggest that he was so inebriated that he did not think properly about the force he was inflicting on the door with his hand. What the sentencing judge said to Mr Soro, that the injury was self-inflicted and not be regarded as extra-curial punishment, was not in accordance with the authority I have mentioned.

26. [115]

    I would uphold this ground of appeal.

27. [116]

    When the sentencing judge was making observations about the reliability and honesty of the offenders, he said this:

28. [117]

    In her report, Dr Seidler had said:

29. [118]

    During submissions by Mr Soro’s solicitor, his solicitor said this:

30. [119]

    The applicant submitted that the sentencing judge mis-stated what had been said by his solicitor by referring to “at least one occasion” and to the assertion that the applicant “drank heavily”.

31. [120]

    The applicant submitted that there was no evidence that the applicant had lied to Dr Seidler. In any event, the finding was one adverse to the applicant, and the sentencing judge could not have been satisfied beyond reasonable doubt that the applicant had lied.

32. [121]

    The Crown submitted that the applicant did not seek to give evidence or otherwise explain what he had said to Dr Seidler, and the conclusion that he had lied was open to the sentencing judge.

33. [122]

    There were three possible explanations for what had occurred. The first was that the plaintiff had lied, as the judge found. The second was that there had been a misunderstanding, as the applicant’s solicitor submitted. Thirdly, the applicant may have honestly but mistakenly told Dr Seidler that he had not consumed alcohol, perhaps because he had forgotten at the time he saw her.

34. [123]

    His Honour appears to have concluded that Mr Soro was lying because Dr Seidler was not called to give evidence about what was said to her by Mr Soro. Certainly, the onus was on Mr Soro to establish that he had made progress towards rehabilitation. The admission that, contrary to what appeared in Dr Seidler’s report, he had consumed alcohol on one occasion, made that task more difficult. It did not lead inevitably to a conclusion that he had lied to Dr Seidler. His Honour used his conclusion that Mr Soiro had lied to doubt his honesty and reliability generally. In that way, the finding is significant.

35. [124]

    Although the Crown did not appear to dispute that such a finding would need to be made beyond reasonable doubt, it is not necessary to decide the ground on that basis. There were, as noted, alternative explanations, and an explanation that might have suggested misunderstanding came from Dr Seidler’s report. Shortly before she recorded what the applicant told her in that regard, she said this:

36. [125]

    A finding that the applicant lied, with that lie being used against the applicant generally was a serious one to make, and was made without there being other evidence that the statement was falsely made to Dr Seidler. The problem was compounded by the sentencing judge’s mis-statement about what Mr Soro’s solicitor said, “that on least one occasion you drank heavily since your arrest”.

37. [126]

    The applicant did not identify how the judge’s finding was used adversely to the applicant in any particular way, but it can be inferred that it at least affected the judge’s conclusions about prospects of rehabilitation. In my opinion, the finding was made without evidence and should not have been made.

38. [127]

    I would uphold this ground of appeal.

39. [128]

    I would not differ from the sentencing judge in finding that the objective seriousness in respect of each of the applicants was slightly below a mid-range offence. The offence was aggravated by being committed in Mr Lane’s home and by the use of the bottle as a weapon.

40. [129]

    I accept the sentencing judge’s findings in relation to the background of each of the applicants.

41. [130]

    Each has a criminal record which denies him leniency.

42. [131]

    Both applicants are entitled to a discount of 25% for the utilitarian value of their early pleas.

43. [132]

    In relation to Mr Kaisuva, he had embarked on a 12-session program at Odyssey House to deal with his alcohol abuse. At the time of being sentenced, he had completed nine of those sessions. On the other hand, it appears that he had done nothing in relation to obtaining a mental health care plan from his GP which would have referred him to a psychologist to deal with issues about conflict resolution and anger management, as the KSAR had recommended. In an affidavit read for the purposes of resentence, the applicant said that he was anxious to be released from gaol so he could return to Odyssey House to re-engage in the program. He considered that it was helpful. He said he had sought to undertake further drug and alcohol rehabilitation courses in custody, but had been told he was not eligible to do so.

44. [133]

    There was evidence of one prison disciplinary matter, that he had refused to supply a urine sample in September 2021.

45. [134]

    Whilst Mr Kaisuva has taken some steps towards rehabilitation, I regard his prospects for rehabilitation as guarded, and I agree with the sentencing judge that his prospects in that regard would be enhanced by a longer period on parole. His risk of reoffending is closely related to his rehabilitation prospects.

46. [135]

    The applicant gave evidence that he wanted to apologise to Mr Lane. When he was asked by his counsel how he wanted to take responsibility, he said that he was going to do everything “rehab wise, toning down the alcohol completely”. He had undertaken some rehabilitation at Odyssey House before he was incarcerated, and I accept that he is remorseful.

47. [136]

    Although I consider that the sentencing judge erred in relation to findings related to the applicant’s rehabilitation, I am of the opinion that no lesser sentence was warranted, given the serious nature of the offence. In that regard, I note the generous discount accorded by the sentencing judge on account of the finding of special circumstances.

48. [137]

    I propose that in the case of Mr Kaisuva’s appeal that leave be granted but the appeal dismissed.

49. [138]

    In relation to Mr Soro, he told Dr Seidler that he had begun consulting with a psychologist via a mental health care plan from his general practitioner. He had been seeing the psychologist once a month, and the sessions focused on his abuse of alcohol.

50. [139]

    Dr Seidler said of this:

51. [140]

    Evidence was tendered for the purpose of resentencing, including from the Chaplaincy Service at the Geoffrey Pearce Correctional Centre where Mr Soro is held. That letter disclosed that Mr Soro has been participating in the Intensive Drug and Alcohol Treatment Program (IDAPT), which is an intensive nine month program, targeted at medium to high risk male prisoners with drug abuse problems and related dynamic criminogenic needs.

52. [141]

    Mr Soro has also received a number of certificates for programs he has completed in custody including certificates in relation to the construction industry.

53. [142]

    I would regard Mr Soro’s prospects of rehabilitation as guarded. Given that his prospects of reoffending are likely to be closely related to his rehabilitation in relation to alcohol, I consider that his prospects of not reoffending in the future are also guarded.

54. [143]

    Whilst I accept, on the authority of Quinn and other cases, that Mr Soro suffered extra-curial punishment by breaking his hand when he punched Mr Lane’s door, and that it should form part of the instinctive synthesis, I do not consider that it is a significant mitigating factor.

55. [144]

    As with Mr Kaisuva, I consider that no lesser sentence for the offending is warranted, particularly given that it was Mr Soro who struck Mr Lane over the head with a bottle and kicked him while he was on the ground. Again, I regard the reduction in the statutory ratio for special circumstances as generous to Mr Soro. Whilst leave should be granted to Mr Soro to appeal, his appeal should be dismissed.

Conclusion

1. [145]

   I propose the following orders:

   1. (1)

      On the application for leave to appeal by Jacob Kaisuva:

   2. (2)

      On the application for leave to appeal by Viliame Soro:

2. [146]

   BUTTON J: I agree with Davies J.