Baleiovalau v R

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Callaghan v R (2006) 160 A Crim R 145 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Kollas and Mitchell [2002] NSWCCA 491 The Queen v Hoar (1981) 148 CLR 32

PARTIES: Tomu Baleiovalau (Applicant) Crown (Respondent)

COUNSEL: Ms A Francis (Applicant) Ms D Woodburne SC (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/4742

HODGSON JA BUDDIN J PRICE J

29 May 2009 BALEIOVALAU v R Judgment 1 HODGSON JA: I agree with Price J. 2 BUDDIN J: I agree with Price J. 3 PRICE J: The applicant, Tomu Baleiovalau, seeks leave to appeal against the severity of the sentences imposed upon him by Tupman DCJ in the District Court at Penrith on 30 August 2007. He had pleaded guilty in the District Court on 24 January 2007 to three counts on an indictment which were as follows:

Count 1 : On 25 February 2005 at Hurstville … when in company with Semisi Kinikini and two other unknown men did rob … of the sum of approximately $40,005, the property of [the] Qantas Staff Credit Union Limited in circumstances of aggravation, namely when armed with a dangerous weapon, being a shortened rifle ( the Hurstville robbery ). This was an offence contrary to s 97(2) of the Crimes Act 1900 which is punishable by a maximum penalty of 25 years imprisonment.

Count 2 : On 12 April 2005 at Arncliffe ... whilst in company with Semisi Kinikini, Iorangi Pera and Joseph Lesi did rob … of one Holden Commodore motor car registered number HFV-57A and one unregistered Holden Commodore motor car the property of Parkside Automobiles Pty Limited in circumstances of aggravation, namely when armed with a dangerous weapon, being a shortened 12-gauge self-loading shotgun ( the Parkside robbery ). This was also an offence contrary to s 97(2) of the Crimes Act .

Count 3 : Between 10 and 13 April 2005 at Sydney … did conspire with Semisi Kinikini, Iorangi Pera and Joseph Lesi to commit a robbery in company on the Qantas Staff Credit Union at Hurstville while armed with a dangerous weapon, namely a shortened 12-gauge self-loading shotgun ( the conspiracy ). As this was an offence of conspiracy, the maximum penalty for the substantive offence of aggravated armed robbery contrary to s 97(2) of 25 years imprisonment was the relevant yardstick: The Queen v Hoar (1981) 148 CLR 32 at 39. 4 The applicant was sentenced as follows:

Count 1 ( the Hurstville robbery ): Imprisonment for a term of 6 years 6 months commencing on 12 April 2006 and expiring on 11 October 2012 with a non-parole period of 4 years 6 months commencing on 12 April 2006 and expiring on 11 October 2010.

Count 2 ( the Parkside robbery ): Imprisonment for a term of 6 years 6 months commencing on 12 April 2010 and concluding on 11 October 2016 with a non-parole period of 3 years 6 months commencing on 12 April 2010 and expiring on 11 October 2013.

Count 3 ( the conspiracy ): Imprisonment for a term of 5 years 6 months commencing on 12 April 2008 and concluding on 11 October 2013 with a non-parole period of 3 years 6 months commencing on 12 April 2008 and expiring on 11 October 2011. 5 As a result of partial accumulation and concurrence the total effective sentence imposed by the Judge was 10 years 6 months commencing on 12 April 2006 and expiring on 11 October 2016 with a non-parole period of 7 years 6 months commencing on 12 April 2006 and expiring on 11 October 2013. The earliest date the applicant is eligible to be released to parole is 11 October 2013. 6 The Judge had reduced the sentence by 20 per cent for the utilitarian value of the pleas of guilty. 7 The Notice of Appeal identifies two grounds, namely: 1. Her Honour failed to have proper regard to the principles of parity when sentencing the applicant. 2. Her Honour failed to have proper regard to the principle of totality when sentencing the applicant. 8 The applicant was sentenced at the same time as Semisi Kinikini (Kinikini) and Joseph Lesi (Lesi). As the parity argument advanced in the first ground of appeal relates to the sentences imposed on Kinikini who was a co-offender with the applicant in each of the three counts it is convenient to detail the sentences imposed upon him by the Judge. Kinikini had entered pleas of guilty for which a 20 per cent utilitarian discount was allowed. Kinikini was sentenced as follows:

Count 1 ( the Hurstville robbery ): Imprisonment for a term of 6 years 6 months commencing on 12 January 2006 and expiring on 11 July 2012 with a non-parole period of 4 years 6 months commencing on 12 January 2006 and expiring on 11 July 2010. Count 2 ( the Parkside robbery ): Imprisonment for a term of 8 years commencing on 12 January 2009 and expiring on 11 January 2017 with a non-parole period of 5 years commencing on 12 January 2009 and expiring on 11 January 2014.

The Judge was asked to take into account on a Form 1 when sentencing Kinikini for count 2 an offence of aggravated armed robbery contrary to s 97(2) of the Crimes Act which had been committed at the Rosehill Hotel ( the Rosehill robbery ). The Rosehill robbery had been committed by Kinikini with two other men on 7 April 2005. The applicant was not charged with this offence.

Count 3 ( the conspiracy ): Imprisonment for a term of 5 years 6 months commencing on 12 January 2008 and expiring on 11 July 2013 with a non-parole period of 3 years 6 months commencing on 12 January 2008 and expiring on 11 July 2011. 9 As a result of partial accumulation and concurrence the total effective sentence imposed on Kinikini was 11 years commencing on 12 January 2006 and expiring on 11 January 2017 with a non-parole period of 8 years commencing on 12 January 2006 and expiring on 11 January 2014. The earliest date Kinikini is eligible to be released to parole is 11 January 2014.

FACTS 10 The facts of the offences were not in dispute and an agreed statement of facts was tendered. The facts found by the Judge for the Hurstville robbery (count 1) were as follows (ROS at 6-7): " I will deal first of all with the offence jointly committed by Mr Baleiovalau and Mr Kinikini on 25 February 2005. At about 3.50pm on that day three men crossed the road heading towards the Qantas Staff Credit Union in Hurstville. They were all disguised, wearing scarves and caps and also gloves. A fourth man remained outside in the car. Seeing this, staff inside the credit union locked the doors, some or all of the three offenders smashed the glass window near the teller's area with a sledgehammer, two to them went inside and one remained in the foyer. That person was armed with a sawn-off .22 rifle. Some members of the public saw him and tried to take a photo. He chased them, forced them to lay on the ground in the foyer and threatened them while still holding the rifle. There were at least seven staff members inside the bank area. They had retreated to the office area at the approach of the offenders. The three offenders went inside the bank and started smashing drawers, then the third offender went back outside and patrolled the foyer area whilst armed with a shotgun. The other two emptied the cash drawers into bags they had with them. They left quickly through the hole they had smashed in the glass with the sledgehammer. During these events the third offender threatened a staff member who had come from another part of the credit union. In all, the offenders took the sum of $40,005 in cash from the drawers. They were inside the bank for a short period only. They escaped in the black car driven by the fourth man, which was a car which had previously been stolen." 11 The Judge found that although the actual role played by the applicant and Kinikini could not be discerned, they were part of the joint criminal enterprise and were equally liable. None of the stolen money was recovered. 12 The facts found by the Judge for the Parkside robbery (count 2) were as follows (ROS at 15-16): Three of them then walked to Parkside Automobiles… Mr Lesi was carrying a shotgun sticking out the back of his jumper and [the applicant] had changed clothes which had been observed during earlier surveillance. Mr Kinikini was waiting with the car but I accept that this was because he had an injured leg at the time. The Crown alleges that the third man who went to Parkside Automobiles was Mr [P]. Mr Lesi and [the applicant] confronted the nineteen year-old James Anastasakis who worked in the car yard with his father and brother who was aged twenty-one. His father owned the car yard. Mr Lesi pulled out the shotgun and pointed it at James and asked how many people worked there. He was told there was one in the workshop and one in another room. Mr Lesi went in search of them. [The applicant] was holding a handgun pointed at the ground when Mr Paul Anastasakis, the twenty-one year old brother, came out from the office. The two young men were forced to the ground by him. [The applicant] pointed the gun at one of them and told him not to look at him. He told them that they just wanted cars. The owner, Mr Anastasakis senior, was brought from the nearby office and the offenders demanded keys to two cars. There were some discussions about batteries needing to be connected to the cars and in due course a silver Commodore was started and paper work was demanded and given to the offenders for cars. [The applicant] ripped out the phones and told the owner not to call the police. The offenders left with two stolen cars from the premises, one being driven by [the applicant] and the third man driving another. Mr Kinikini drove away in the car in which they had originally arrived ." 13 The Judge accepted that the stolen vehicles were to be used in connection with a planned armed robbery of the Qantas Credit Union at Hurstville later that day which was foiled as the police who had telephone intercepts and surveillance on the offenders moved in and prevented the planned robbery. 14 Count 3 was the conspiracy to commit the armed robbery of the Qantas Staff Credit Union that was foiled by the police. The degree of planning included arranging for the obtaining of a sledgehammer and the planning to steal a car to use in the armed robbery. 15 The facts of the Rosehill robbery (Form 1 count 2 Kinikini) were that on 7 April 2005, Kinikini, Lesi and another man entered the Rosehill Hotel at about 1.40pm. Kinikini was armed with a silver pistol and one of his co-offenders with a shortened shotgun. All three were disguised. During the robbery, the hotel manager was struck a heavy blow to his lower back, knocking him to the floor. Kinikini pulled him to his feet, forced him back to the change booth where he put money into a bag. The hotel licensee was grabbed by the shirt by Lesi and led through the hotel. A hotel patron was confronted by the third co-offender who was holding the shortened shotgun. Other hotel patrons who had been playing poker machines were directed by Kinikini, whilst holding the silver pistol, to get on the floor. Lesi took the hotel licensee to the office where the safe was opened. When the alarms were activated, the offenders fled from the hotel. In all, $3,761 was stolen in this robbery. Both the licensee and manager were injured in the robbery. 16 The Judge described the offence as being (ROS at 13): "…probably the most serious of the offences that are before me one way or the other today. " Subjective circumstances 17 The applicant was born in Fiji on 13 February 1980. He was 25 years old at the time of the offending and 27 years old on sentence. The applicant was an only child who came to Australia in 1993 and lived with members of his family in this country. The Judge said (ROS at 25): " He left high school about half-way through year ten and had had trouble with truancy. He has had a very limited employment history and …has only ever worked for about four weeks. He seems to have survived by committing offences in the past and with help from his extended family. He was a user I accept of heroin fairly significantly from the age of eighteen and he also used cocaine and ecstasy and other drugs." 18 The Judge observed that there was no evidence that he committed the offences to fund a drug addiction or that he was in fact addicted to drugs. Her Honour accepted, however, that he continued or recommenced using drugs when released to parole and that the offences were committed with a view to obtaining funds some of which would have been spent on drugs. Her Honour assessed "his prospects of rehabilitation [to be] only fair given his history." 19 The Judge remarked that the applicant had a serious criminal record which commenced with a goods in company offence in January 1997 "and then in 1997 aggravated armed robbery and robbery in company offences which gave rise to the sentences for which he was on parole at the time he committed the matter before me." Her Honour was referring to the sentences imposed upon the applicant in the District Court at Sydney on 15 December 2000 by Sorby DCJ when he was sentenced for three counts of aggravated armed robbery and two counts of aggravated robbery. Further counts of aggravated robbery, robbery in company and stealing a motor vehicle were taken into account on sentence on a Form 1. A total effective sentence of 8 years imprisonment was imposed commencing on 6 October 1999 and expiring on 5 October 2007 with a non-parole period of 5 years expiring on 5 October 2004. 20 The applicant had been admitted to parole on 5 October 2004. The Judge found as a factor of aggravation the commission by the applicant of the Hurstville robbery whilst on parole. Her Honour noted that he had been released to parole "just four months before he committed this offence" and the sentences for which he had been sentenced in 2000 involved "similar offences". 21 The applicant was arrested on 12 April 2005 when police foiled the plan to carry out a second Hurstville robbery. His parole was revoked on 28 April 2005 to date from 12 April 2005. He was ordered to serve the balance of parole being 2 years 5 months and 24 days. The Judge noted that this sentence did not expire until 9 (sic) October 2007. Her Honour said (ROS at 33): "There should, however, be some partial accumulation for the sentences I will impose and that balance of parole. In fact he has now served almost the whole of the head sentence imposed on him of eight years for those earlier offences. Taking that into account and the considerations of totality I propose to commence his sentence from twelve months after the date of his arrest, that is from 12 April 2006." 22 Save for the argument advanced by the applicant for Ground 2, there is no challenge to the commencement date of the applicant's sentence for the Hurstville robbery. It was conceded that her Honour's approach was consistent with Callaghan v R (2006) 160 A Crim R 145. 23 Kinikini was born on 14 May 1982. He was 22 years old at the time of the offending and 25 years old when sentenced. He had migrated to Australia from Fiji with his family when he was 8 years old. He completed his Higher School Certificate and commenced tertiary studies hoping to be a physical education teacher but was not able to continue. He worked for a while as a labourer and security guard. The Judge accepted that he had been a significant user of illegal drugs probably since 2002. The Judge observed that there was no evidence that he was a hopeless addict. Her Honour noted that at the time Kinikini committed the offences and was relapsing into drug use he was also acquiring qualifications as a fitness instructor and was considered to be a talented rugby player. Her Honour assessed his prospects of rehabilitation to be reasonable. 24 The Judge said that Kinikini had "a serious criminal record including convictions for similar matters". Kinikini's prior criminal history relevantly reveals that in the District Court at Sydney on 9 April 2003 he was sentenced for a count of obtaining money by deception to a fixed term of 6 months imprisonment, for a count of robbery to 2 years 3 months imprisonment commencing on 26 August 2002 and expiring on 25 October 2004 with a 12-month non-parole period expiring on 25 August 2003 (an offence of obtaining money by deception being taken into account on a Form 1) and for one count of armed robbery to imprisonment for 3 years 9 months expiring on 8 January 2007 with a non-parole period of 16 months expiring on 8 August 2004. 25 The applicant had been released to parole on 8 August 2004. The Judge observed that Kinikini had been released to parole for little more than 6 months when he committed the Hurstville robbery which was an aggravating factor. 26 Kinikini was arrested on 12 April 2005 and his parole was revoked from that date. No actual period was set for the balance of his parole as by the time it was considered by the Parole Board the sentence had expired. As the Judge explained (ROS at 33): " He had nonetheless been in custody for these matters bail refused and after having had his parole revoked since 12 April 2005. At that stage he had served only sixteen months of a three year and nine months sentence with eight months out on parole and would have faced one year and nine months balance of parole, albeit that that formal sentence was never imposed. In those circumstances and taking into account issues of totality I propose to commence the sentences for him nine months after he came into custody, so that effectively one year of his earlier sentence will be served concurrently with the sentences I will impose. The commencement date for him will then be 12 January 2006." 27 During the remarks on sentence, the Judge said (ROS at 31): " So, when looking at the subjective circumstances of all of the three offenders they are a little different, there is in reality, it seems to me, no substantial distinction in sentencing terms in the subjective circumstances of each of the prisoners. Neither is there any distinction argued nor apparent in relation to the respective roles each of them played in the offences which are joint offences. Further, their criminal records are very similar and they were all on parole at the time…"

Ground 1 . Her Honour failed to have proper regard to the principles of parity when sentencing the applicant.

28 The first ground of appeal raises the issue of parity relative to the sentence imposed upon Kinikini. The applicant and Kinikini were both sentenced for the Parkside robbery. For this offence the applicant was sentenced to imprisonment for 6 years 6 months with a non-parole period of 3 years 6 months. When Kinikini was sentenced for count 2, the Rosehill robbery was taken into account on a Form 1. He was sentenced to 8 years imprisonment with a non-parole period of 5 years. The applicant submitted that it can be seen that her Honour considered that the additional period of sentence that was to be imposed as a consequence of the Rosehill robbery was 18 months as there were no relevant differences in either the objective circumstances of the co-offenders' offending or their subjective circumstances. The sole matter of difference, the applicant contended, was the Form 1 offence which had been adequately reflected by Kinikini's additional sentence of 18 months. However, the effective overall sentence imposed on Kinikini was a head sentence of 11 years with a non-parole period of 8 years whereas the applicant's effective overall sentence was a head sentence of 10 years 6 months with a non-parole period of 7 years 6 months. The applicant argued that the structure of the sentences resulted in the applicant's effective head sentence and effective non-parole period being only 6 months less than that of Kinikini giving rise to a justifiable sense of grievance. 29 It was pointed out that the applicant's sentence for the Parkside robbery had been accumulated upon the sentence of the conspiracy (count 3) by two years, whereas Kinikini's sentence for the Parkside robbery had been accumulated upon the sentence for the conspiracy by only 12 months. The applicant contended that there was no justifiable reason for her Honour to have differentiated between those orders of accumulation. Kinikini's overall sentence did not reflect, it was submitted, her Honour's recognition of the seriousness of the Rosehill robbery when she sentenced him for the Parkside robbery. The applicant's sense of grievance, it was suggested, could be overcome by commencing his sentence for count 2 on 12 April 2009. 30 The structure of the sentences arose from the Judge's careful consideration of the principle of totality in accordance with Pearce v The Queen (1998) 194 CLR 610. Her Honour first determined a sentence for each offence. For the Hurstville robbery it seemed to her Honour that absent a plea of guilty this offence would attract for the applicant and Kinikini an overall penalty of 8 years which was then reduced by about 20 per cent for the plea of guilty giving rise to a head sentence of 6 years 6 months. Her Honour then found special circumstances and proposed a non-parole period of 4 years 6 months for each of the two offenders. 31 For the Parkside robbery, her Honour determined that the undiscounted starting point of the applicant's sentence would be 8 years which when reduced by 20 per cent for the plea of guilty amounted to a head sentence of 6 years 6 months. With a finding of special circumstances, her Honour proposed a non-parole period of 4 years 6 months and then said: "but for reasons I will come to in due course after applying totality and in order to give effect to that I propose a non-parole period of three and a half years for that particular offence". 32 In sentencing Kinikini for count 2, the Judge said she took the Rosehill robbery on the Form 1 into account "in a significant way" and determined that the undiscounted starting point of the sentence was 10 years which when reduced by 20 per cent for the plea amounted to a head sentence of 8 years with a non-parole period of 5 years after a finding of special circumstances. Her Honour plainly recognised that the sentence for the primary offence was not to be only slightly increased if the offence to be taken into account on the Form 1 was serious in its own right which the Rosehill robbery was: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. 33 In sentencing each of the co-offenders for the conspiracy, the Judge determined that the undiscounted starting point of the sentence was 7 years which when reduced by 20 per cent for the plea amounted to a head sentence of 5 years 6 months with a non-parole period of 3 years 6 months after special circumstances were found. The special circumstances her Honour found for the applicant and Kinikini were the same, namely a "longer than normal period of supervision and partial accumulation." 34 No complaint is made by the applicant about any of the individual sentences. 35 The Judge next considered the overall length of imprisonment for each of the offenders. She calculated that if each of the sentences was ordered to be served entirely consecutively it would give rise in the applicant's case to an overall head sentence of 18 years 6 months with a non-parole period of 11 years 6 months and for Kinikini an overall head sentence of 20 years with a non-parole period of 13 years 6 months. Her Honour considered that these sentences were [too] excessive to reflect the totality of the criminality involved in each case and said (ROS 37): " I have concluded that to reflect totality … in the [applicant's] case an overall term of ten-and-a-half years with a seven-and-a-half year non-parole period [is called for] and in Mr Kinikini's case an overall term of imprisonment of eleven years with an eight year non-parole period. I have structured the sentences to give effect to these findings. In the case of [the applicant] I have reduced what might otherwise be the appropriate non-parole period for one of the counts, namely count two, by a year so as to reflect those totality considerations. I acknowledge the need to do this arises from the application of Pearce's case and that to some extent or other the actual fixing of sentences to charges is somewhat arbitrary ." (italics added) 36 The difference of six months both in the head sentence and non-parole period between the sentences of Kinikini and the applicant resulted from the Judge's assessment of the length of each overall sentence which was just and appropriate to the totality of the criminality of the applicant and his co-offender. The application of the totality principle does not, however, render considerations of parity redundant. The essential question is whether the difference in sentence gives rise to "a justifiable sense of grievance": Postiglione v The Queen (1997) 189 CLR 295. 37 It is evident from the whole of the sentencing remarks that the Judge was aware of the parity principle. When her Honour reviewed for each offender the aggregate of the individual sentences which she had calculated and made a substantial downward adjustment to ensure that the overall sentence was just and appropriate to the totality of the offending behaviour, her Honour was not obliged to preserve the 18-month difference in sentence between Kinikini and the applicant. If her Honour had done so, the overall sentence, in my view, would not have adequately reflected the seriousness of the totality of the applicant's criminality. A preservation of a proper proportion between the applicant's sentence and that imposed upon Kinikini required a reduction in the 18-month difference in sentence. 38 During oral argument in this Court, it was noted that the downward adjustment by the Judge for the applicant's sentence was made in almost the same proportion as the downward adjustment in Kinikini's sentence. The Crown pointed out in written submissions that the ratio of Kinikini's effective non-parole period to his effective head sentence was 72.7 per cent whereas it was 71.4 per cent for the applicant. In other words, the applicant in fact received a more generous finding on his non-parole period than Kinikini arising from the same special circumstances. 39 Sentencing as has been frequently pointed out is not a matter of mathematical accuracy or analytical certainty and room must be left for discretion: see R v Kollas and Mitchell [2002] NSWCCA 491 per Wood CJ at CL at [49]. In Postiglione Kirby J said at 341: "Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing Judge or appellate court, involve subtle considerations which defy precision either of description or implementation." 40 Although the Judge said in the passage quoted at [27] that there was no substantial distinction in the subjective circumstances of the offenders, there were relevant differences. The applicant was 25 years old and Kinikini was 22 years old when the offences were committed. The applicant's prior criminal history was more extensive than that of his co-offender which was reflected in the sentence imposed on him in the District Court on 15 December 2000. The Judge's assessment of prospects of rehabilitation was less optimistic in the case of the applicant. The Judge had also determined that the sentences for the co-offenders had different starting points. The applicant's sentence was partially accumulated on the sentence that he was serving by 18 months, whereas Kinikini's sentence had been backdated by 12 months to take into account the sentence that had been served. Whilst no distinction had been argued in the roles of the co-offenders, the part that the applicant played in the commission of the Parkside robbery included pointing a handgun at one of the victims whereas Kinikini remained in the vehicle. 41 The co-offenders were sentenced before the same Judge. Her Honour had the opportunity of assessing the evidence first hand and gave a considered decision on sentence. In my opinion, the Judge's assessment of the overall length of each sentence that was just and appropriate to reflect the totality of the criminality of the applicant and Kinikini was open to her. I am not persuaded that the overall effective difference in the sentences involves a marked disparity giving rise to a justifiable sense of grievance. This ground of appeal has not been established.

Ground 2 : Her Honour failed to have proper regard to the principles of totality when sentencing the applicant. 42 The applicant argued that in fixing the total non-parole period, the Judge failed to have sufficient regard to the sentence that he was serving at the time sentence was imposed and consequently failed to have proper regard to the principle of totality. It was pointed out that when considered in combination with the sentence imposed by Sorby DCJ on 15 December 2000, the effect of her Honour's sentencing is that he will have spent almost 14 years incarcerated when he becomes eligible for release to parole. 43 The essence of this submission is the requirement for a sentencing judge to consider "the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence" and to ensure that the aggregation of sentences is a "just and appropriate measure of the total criminality involved": Postiglione per McHugh J at 307 - 308. 44 The Judge clearly considered in the passage quoted at [21] above the fact that the applicant had almost served the whole of his head sentence of 8 years and made reference to considerations of totality. The sentence which her Honour imposed was backdated to commence from 12 April 2006 and was partially accumulated by almost 18 months upon the sentence which was being served. This was properly within the Judge's sentencing discretion and I do not accept that her Honour failed to have proper regard to the principle of totality. 45 Accordingly, I propose the following orders:

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