Baleiovalau v R

[2015] NSWCCA 305

Court of Criminal Appeal (NSW)|2015-11-19|Before: Gleeson JA, Bellew J, Hulme AJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2015-11-19

Before

Gleeson JA, Bellew J, Hulme AJ

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

The applicant's subjective case

The applicant was born in Fiji on 13 February 1980. He was 24 years old at the time of the 2004 offence and 34 years old on sentence. The applicant was the eldest of three sons who came to Australia with his mother when he was about 11 or 13 years of age. The judge said (ROS 16): He has had a patchy educational experience. He has had a history of drug abuse since his late teens. He had his primary education in Fiji, secondary education at Punchbowl Boys High School where he left due to problems without completing Year 10. He has never worked outside of prison. He has found it difficult after the times he spent in custody to adjust after being released from prison.
A report dated 6 August 2014 from a clinical psychologist, Mr Peter Champion, expressed the view that the applicant became peer dependent in adolescence and associated with peers who were involved in serious crimes, such associations being likely to add to a distortion of his attitudes and values.
The applicant has a criminal history for similar robbery offences in 1997 dealt with in the Children's Court, and in 1999 dealt with in the District Court. For the 1999 offences, he was sentenced to 8 years imprisonment with a non-parole period of 5 years commencing on 6 October 1999.
The psychologist recorded that the applicant had been ambivalent about his release on parole in October 2004, because he was concerned about his ability to cope in the community.
The psychologist expressed the view that the applicant may have become institutionalised, noting that in the last 15 years the applicant had been in custody for almost all but 6 months.
The psychologist could only rate the applicant's prognosis as guarded, and poor in the event of a relapse into drug use or social dislocation, including loss of accommodation and/or family support networks.

[2]

The sentencing judgment

The judge noted that the offending was aggravated as the applicant had been on conditional liberty for similar offences at the time of the 2004 offence (ROS 6). He accepted that the 2004 offence was "essentially the same period of criminality, going over about four months" as the 2005 offences (ROS 9-10). He observed in relation to the 2005 offences (ROS 9-10): Those robberies I note included the use of disguises, scarfs, clubs, a sledge hammer and a sawn-off 22 riffle [sic]. Her Honour judged the offences in the middle of the range of objective seriousness. In relation to one of the offences the robbery of a motor vehicle her Honour found the specific purpose was to use the vehicle in a further armed robbery of which the offenders stood charged. In that sense there is that connection between the two offences which I have dealt. In the course of the robbery Mr Baleiovalau, the offender, held a gun pointed at the victims of that robbery and phones were ripped from the walls. As I say in this regard there is resonance in the facts which I found in the present two cases. …. I have been furnished with the Court of Criminal Appeal judgment as to those matters and I note as to those matters as the Crown asked because the observation is correct, that at paras 10 through to 13 the similarity of the facts which I will broadly summarise, are self-evident.
The judge found that the applicant was not a young offender without criminal history; a working firearm was presented; the firearm was discharged and a person was injured. Accordingly the judge considered the Henry guideline should be put aside (ROS 20).
The judge found that there was significant planning in relation to the offending. He accepted that there was only limited violence in the sense that minor injuries were occasioned to a bystander. Nonetheless his Honour found that the possession and discharge of a pistol in a public place would cause significant fear and trauma to the person actually injured and those who witnessed it. He found that the victims, particularly the bank tellers, were in a vulnerable position and so were the customers of the bank (ROS 20-21).
The judge noted that a number of aggravating factors referred to in the Henry guideline were engaged to "some extent", including the presence of a loaded pistol, significant planning, the use of force - both the discharge of the pistol and the use of the sledgehammer - and that the applicant was in company, there being three co-offenders involved (ROS 21).
While the judge accepted that the applicant was unarmed, he found beyond reasonable doubt that the applicant was aware of the presence of a dangerous weapon, that it was loaded and knew of a possibility that it might be discharged (ROS 25-26).
The judge referred to the evidence of the psychologist which has been already mentioned (ROS 16-17). He was unable to make any finding about the applicant's prospects of rehabilitation (ROS 19).
The judge referred to R v Todd [1982] 2 NSWLR 517; Mill v The Queen [1988] HCA 70; 166 CLR 59; and Wu v R [2011] NSWCCA 102; 211 A Crim R 88. He found that there were delays in the investigation and prosecution of the 2004 offence and the effects of the delay were "not insignificant" (ROS 21-22). He did not accept that the applicant was in a state of uncertain suspense, in the absence of evidence from the applicant on the sentencing hearing (ROS 24). He found that the applicant had not taken any active steps prior to May 2013 to undertake the Violent Offenders Program (ROS 27).
The judge accepted the evidence of the psychologist that the applicant had become institutionalised, having spent almost 15 years in custody (ROS 27).
The judge made a finding of special circumstances to deal with any remnants of the applicant's drug abuse and imposed the sentence already indicated (ROS 29). He added: … of course there is in a sense a notional of [sic] accumulation of sentences given the fact that I have taken into account issues of totality (ROS 29).

[6]

Decision

When sentencing the applicant for the 2004 offence it was necessary for the judge to ensure that the aggregation of all of the sentences is a "just and appropriate measure of the total criminality involved": Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307-308 (McHugh J).
As Howie J explained in Cahyadi v R at [27]: … there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
The issue in the present case is whether the accumulation is too great. This has two aspects: both the effective non-parole period and the overall term. The totality principle is not limited to the fixing of a non-parole period: Mill v The Queen at 66.
It may be seen from the concluding remarks of Lakatos SC DCJ (set out at [37] above) that his Honour intended "a notional accumulation of sentences". This would have been consistent with his Honour's findings that the period of criminality involving the 2004 and 2005 offences was essentially the same and that the applicant was not responsible for the significant delay in the prosecution of the 2004 offence.
However, as the applicant correctly pointed out, there was nothing "notional" in the accumulation of the sentence for the 2004 offence on the earlier sentence on the 2005 offences. The effect of the accumulation by extending the overall term by 18 months and the non-parole period by 2 years 6 months was inconsistent with his Honour's stated intention. In particular, his Honour seems to have overlooked that the accumulation of the sentence on the 2005 offences meant that for the overall term of the sentence (12 years), the proportion of the non-parole period (10 years) was in the order of 83%. That outcome was unexplained by his Honour. It seems that his Honour may have overlooked it. The outcome was excessive and unwarranted.
Ground 2 is made out.

[10]

Is some other sentence warranted in law?

In exercising the sentencing discretion afresh, the proper approach in accordance with R v Todd and Mill v The Queen is to assess what would have been the likely sentence imposed if the applicant had been dealt with for all offences at the same time.
The objective features of the applicant's offending and the evidence of the applicant's subjective circumstances which was placed before Lakatos SC DCJ, has been summarised above. The applicant did not seek to place before this Court any evidence of his circumstances post sentence. While the attempted armed robbery did not succeed, the judge correctly found that it was a serious offence involving significant planning, the use of force and the discharge of a firearm by a co-offender.
The applicant's counsel referred to the statistics in the period January 2008 to December 2014, for attempted robbery offences, armed with a dangerous weapon. The most recent statistics for the period April 2008 to March 2015 show that, in superior courts, 8 out of 16 offenders (50%) had a term of imprisonment imposed upon them that was less than the 5 year total term imposed upon the applicant.
However, the statistics upon which reliance was placed do not assist. As the Crown correctly pointed out, the statistics are of particularly limited use in the present case given the small number of offenders sentenced. The applicant was only one of two offenders to plead not guilty and a significant aggravating factor in the applicant's case is that the offence was committed whilst he was on parole for similar offences.
In the present case, it is necessary to consider the effect of partial accumulation of the sentence on the 2004 offence on the ratio between the overall non-parole period and the overall term of the sentence: Barrett v R [2011] NSWCCA 213 at [29] (Hidden J; Whealy JA and Johnson J agreeing).
In my view, if the 2004 and 2005 offences had been dealt with at the same time, the likely overall term would have been about 11 years. An appropriate overall non-parole period would have been about 8 years.
Although the term of 5 years imposed by Lakatos SC DCJ was otherwise appropriate, I am persuaded that a lesser sentence than that imposed by his Honour was warranted in law in terms of partial accumulation and concurrency on the 2005 offences.
Having regard to the partial accumulation of the sentence on the 2005 offences that I would propose in the following paragraph, I would also make a finding of special circumstances to ensure an appropriate overall non-parole period for the 2004 and 2005 offences.
Accordingly, I would propose a non-parole period of 2 years commencing from 11 April 2012 and ending on 10 April 2014 with a balance of term of 3 years commencing on 11 April 2014 and expiring on 10 April 2017. It follows that the applicant would be now eligible for release on parole.
I acknowledge that the orders I propose will result in the total non-parole period being about 73% of the total sentence rather than the 71% resulting from the orders of Tupman DCJ and that this result gives little effect to the finding of special circumstances made by her Honour. A lesser percentage could be arrived at by delaying the start of the sentence imposed by Lakatos SC DCJ and providing for a longer balance of term than I propose. However, given the length of the effective non-parole period and total sentence consequent on what I have proposed, I am not persuaded that such a change is required or would be of benefit to the applicant. Undoubtedly the matter is complicated by the sentence which Tupman DCJ originally imposed.

Parties

Applicant/Plaintiff:

Baleiovalau

Respondent/Defendant:

Legislation Cited (2)

Crimes Act 1900(NSW)s 97

Criminal Appeal Act 1912(NSW)s 6(3)

Cases Cited (11)

The 2005 offences

It is necessary to briefly refer to the 2005 offences and the sentences imposed upon the applicant, having regard to ground 2 of the appeal which relies upon the totality principle.
On 24 January 2007 the applicant pleaded guilty to an indictment containing the 2005 offences.
Count 1 concerned robbery in company involving approximately $40,005, the property of the Qantas Staff Credit Union Ltd, on 25 February 2005 at Hurstville, while armed with a dangerous weapon, being a shortened rifle (the Hurstville robbery). There were three co-offenders. They were all disguised, wearing scarves and caps and gloves. A sledgehammer was used to smash the glass window near the teller area. One of the offenders was armed with a sawn-off .22 rifle. He chased and threatened a customer with the rifle, who attempted to take his photo.
Count 2 concerned the robbery in company involving two motor vehicles the property of Parkside Automobiles Pty Ltd on 12 April 2005 at Arncliffe, while armed with a dangerous weapon, being a shortened 12-gauge self-loading shotgun (the Parkside robbery). There were at least three co-offenders. One offender threatened staff with a shotgun. The applicant was holding a handgun and also made threats to the staff (although the pistol was later found not to be in working order). The offenders left with two stolen cars, one of which was driven by the applicant
Count 3 concerned a conspiracy with three identified persons between 10 and 13 April 2005 to commit a further robbery on the Qantas Staff Credit Union at Hurstville while armed with a dangerous weapon, namely a shortened 12-gauge self-loading shotgun (the conspiracy).
Tupman DCJ found that each of the offences in their own way was very serious. Her Honour considered the offences well above the circumstances referred to in the guideline case of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry). Her Honour found special circumstances on the basis that a longer period was required for integration into the community and partial accumulation.
On 30 August 2007 Tupman DCJ sentenced the applicant 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.
As a result of partial accumulation and concurrence the total effective sentence imposed by Tupman DCJ was 10 years 6 months commencing on 12 April 2006 and expiring on 11 October 2016 with an effective non-parole period of 7 years 6 months commencing on 12 April 2006 and expiring on 11 October 2013. The sentence was reduced by 20% for the utilitarian value of the pleas of guilty. The sentence was also partially accumulated on sentences imposed in 1999 in respect of similar armed robbery offences (the 1999 offences). The commencement date of the sentence on count 1 of the 2005 offences was 12 months after the applicant's arrest, that is from 12 April 2006.
An appeal to this Court against the severity of the sentence imposed by Tupman DCJ on grounds which included an asserted failure to have proper regard to the principle of totality was unsuccessful: Baleiovalau v R [2009] NSWCCA 153.

[1988] HCA 70

Cited By (1)

XX v R