Laupama v R

Court of Criminal Appeal (NSW)|2015-09-11|Before: Basten JA, Adams J, Hulme J

Solicitors: McGowan Lawyers (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2012/371763; 2012/335069 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 17 December 2013 Before: Hanley SC DCJ File Number(s): 2012/371763; 2012/335069

Judgment

BASTEN JA: I agree with Adams J.
ADAMS J:

Introduction

The applicant was convicted of two offences, the first committed on 24 March 2012 and the second on 26 August 2012. The first offence was a charge of breaking and entering a dwelling house with intent to commit larceny in circumstances of aggravation (being in company) and special aggravation (whilst armed with a firearm). The second offence was a charge of armed robbery. On 17 December 2013 the District Court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment for 11 years, with a non-parole period of 8 years 4 months. The indicative sentence for the first sentence was 7 years with a non-parole period of 5 years 3 months and, in respect of the second, 6 years 6 months with a non-parole period of 4 years 9 months. On 4 July 2013 the applicant had been sentenced for a number of motor vehicle offences, the non-parole periods imposed in respect of two of which were accumulative periods of 6 months, giving an effective non-parole period of 8 months commencing on 27 October 2012 and concluding on 26 June 2013. The present sentences commenced on the expiration of this effective non-parole period. Since the conviction of the first offence followed a trial, no discount applied; however, the applicant pleaded guilty to the second offence on the first day of trial, and a 15 per cent deduction was applied and reflected in the aggregate sentence.

Objective circumstances

A statement of agreed facts was tendered in the sentence proceedings which formed the basis of the primary judge's findings of fact. The following account is taken from his Honour's reasons for sentence. In respect of the first offence, the home in question was a three bedroom house in which resided the victim named in the indictment, his partner, his sister, mother and her partner. At about midnight on 24 March 2012 the victim and his partner were watching television, with the other occupants elsewhere in the house. The applicant and at least one other unknown male began to smash down the front door of the house, forcing it open. The main door and a screen were extensively damaged and almost removed from their hinges. The assailants entered the house. The victim had pushed his bed up against the back of the bedroom door and the applicant or his co-offender attempted to force entry by kicking and hitting the door, demanding that the victim open it. One of the men managed to kick through the lower portion; as his foot came through, the victim grabbed it and a short struggle ensued before the foot was retracted. The victim's sister came out of her bedroom armed with an electric guitar with which she attacked the applicant and his accomplice as they attempted to force open the victim's bedroom door. She raised the guitar above her head and ran towards them demonstrating, as the primary judge said, "considerable courage". Her action forced the two men to retreat through the front door of the house where she saw someone near the front steps holding a firearm. At this point the victim emerged from his bedroom. The applicant and another man re-entered the house, one of them, either the applicant or an accomplice, now being armed with a long barrelled rifle which he raised with both hands and pointed directly at the victim. He grabbed his sister, pulled her into the lounge room and closed the door separating it from the hallway. The pair, together with their mother, barricaded the door and held it firm despite attempts to push it open. The victim called police on a mobile phone and told the attackers that police were on their way. In the meantime, the applicant and one of his accomplices gained entry to the victim's bedroom and rummaged through the chest of drawers and various other areas of the bedroom. As it happened, the victim's partner was still hiding in the room and, as the primary judge justifiably observed, must have been very frightened. The applicant and his accomplices fled the house shortly before police arrived. A number of fingerprints were located, one of which was the applicant's. He was arrested on 27 October 2012 and declined to be interviewed. He pleaded not guilty, electing for trial by judge alone, but was convicted.
The armed robbery committed on 26 August 2012 took place at a bowling club where one of the co-offenders, Scott Lynch, worked. He and one Hudson agreed to rob the club. A week before the robbery, Lynch, Hudson and the applicant travelled to just outside the club where Lynch indicated to the others the door that they should enter because it had no camera surveillance. He also told them where to go inside the club. On the day of the robbery Lynch obtained a pre-paid phone which was to be used to signal the other two as to when they should enter the club. An annual event was held at the club during the afternoon and evening of this day, which was one of the busiest in the year. At about 10pm, when trading ceased and the patrons left the club, it was secured. Shortly after, Lynch telephoned the other offenders who were waiting outside. About 20 minutes later, when he had almost completed emptying all the cash from the 31 poker machines in the club and the manager, Ms Stirrat, was working in the office area, amongst other things placing other money in the safe, the applicant and Hudson forced their way through the rear door, wearing balaclavas and gloves both armed with shotguns. They ran through the club into the poker machine area and pretended to hold up Lynch. He indicated the office area where Ms Stirrat was counting the money. The two men entered the office and confronted Ms Stirrat, telling her to sit down and remain still. They put cash from the open safe into bags, then returned to the poker machine section and took the money that Lynch had collected, together with his mobile phone. The two told Stirrat and Lynch to remain where they were and left the club. Something over $34,000 was stolen. Police were alerted and commenced investigations. Shortly after, a motor vehicle was found completely destroyed by fire and a shortened double barrelled shotgun about three metres away. About three or four days after the offence Lynch went to Hudson's home, where the applicant was also present, and was given $4000 for his part in the crime. As the investigation proceeded, suspicions focussed on Lynch being one of the offenders and, on 8 November 2012, he was confronted by police with these suspicions. He admitted he was involved and participated in an electronic recorded interview in which he made full admissions implicating the applicant and Hudson. The applicant declined to be interviewed and was charged with armed robbery of the club on 27 November 2012. As I have mentioned, he pleaded guilty on the first day of his trial.

Criminal Record

The applicant's criminal record commences in 2006, shortly after he turned 20, when he was convicted on charges of aggravated assault, intent to rob and aggravated robbery, with two charges of robbery taken into account. He was sentenced on this occasion to an overall term of 3 years with an effective non-parole period of 18 months expiring on 14 September 2007. On 14 May 2008 he was sentenced for resisting police to 4 months imprisonment from 27 March 2008 and, for damaging property, to 4 months imprisonment (following appeal) which commenced on 26 March 2008. In May and September 2012, he was fined (respectively) for driving with a middle range PCA and possession of a prohibited drug. On 8 May 2012 a 6 months suspended sentence had been imposed, commencing on 8 May 2012, for driving whilst his licence was suspended. On 4 July 2013, having reoffended, he was called up and sentenced to 6 months imprisonment which commenced on 27 October 2012. On the same day he was also sentenced for dangerous driving and not stopping when pursued by police to 12 months imprisonment with a 6 months non-parole period which commenced on that date and also for driving whilst disqualified to 12 months imprisonment with a non-parole period of 6 months which commenced on 27 December 2012.
It appears, therefore, that although the applicant had spent significant periods in prison after turning 20 years of age, he was at large from August 2008 to October 2012, with no offences on his record during that period.

Subjective features

A psychologist's report had been tendered on behalf of the applicant, which contained the following information under the heading "Criminal history" - "Mr Laupama was first convicted of an offence in 2006 when he was 20 years of age. His offences since have been largely violent robberies, although he has also been charged with a destruction of property, resist arrest, driving while suspended, police pursuit, drug possession, drive while intoxicated and drive without a license. As a result of these convictions, Mr Laupama advised that he has been incarcerated for much of his adult life. Although he seems to have lived in the community for brief periods throughout his 20s, Mr Laupama advised that the longest he has been in the community was 12 months from the age of 24 or 25 to 26, when he was incarcerated on the current charges."
Although Mr Laupama was noted by the psychologist to be a "poor historian", the history he gave was, in substance, accepted by her. However, it is not supported by the criminal record. Leaving aside the fact that he was at liberty for a significant period during his adulthood, the robberies were apparently committed in 2006 (he was charged in March and sentenced in October of that year) with no other like offences recorded.
The psychologist noted other significant aspects of the applicant's history, for example, that when the applicant was six years of age he was made a ward of the state (in New Zealand), residing in a "boys' home" in harsh conditions, from which he absconded when he was 12 years old to find his family. He told the psychologist that he "continues to adhere to the rules common in institutional settings when he is living in the community". She commented, "he is unsure and easily confused by daily tasks in the community; tasks and skills he has never had any particular need for or consistent exposure to… [which], given his long history of institutionalisation and lack of appropriate guidance… is unsurprising". The applicant told the psychologist that he relies heavily on those around him for guidance and support and, when this is lacking, "he becomes emotionally unstable and he begins to engage in unhelpful behaviours… [including] criminal activities that will result in his incarceration". He said that, during his last period of community living, he actively engaged in minor antisocial behaviours (such as riding his bicycle whilst intoxicated) so he would be incarcerated. He feels safer in custody when the pressures of reality are significantly reduced. The psychologist concluded, "Mr Laupama's institutionalisation and his desire to remain in custody raises concern about his risk of reoffending and it is evident he will require significant support if he is to live successfully in the community post release".
The psychologist also reported a lengthy period of significant drug abuse.
The apparent failure of the psychologist to raise with the applicant how he managed during the four years or so that he was in the community and the lack of information about how he coped at this time renders the conclusion about the effects of institutionalisation somewhat weaker. Nevertheless, the applicant's family and developmental history as recounted to the psychologist is appalling; his parents relinquished care of him in his infancy and he was sent to live with various family members until he was six years of age, then (as I have mentioned) he was sent to a boys' home, where the conditions were particularly harsh and it was necessary for him to steal food because he was not adequately fed; after he absconded, he lived with his aunt, who sent him to his mother but he found it difficult to reconnect with her and left after a month to live "on the streets", engaging in criminal behaviour to support himself. He said to the psychologist that his antisocial behaviour resulted in periods of detention but, again, there is nothing in his record to support this until, as I have mentioned, his first offence shortly after his 20th birthday.
With respect to his education, he told the psychologist that he attended many primary schools but was regularly suspended or expelled for misconduct, truanting regularly and failing to develop functional literacy skills, being still unable to read or write with any proficiency and struggling with comprehension and articulation. Although he went to secondary school, he was homeless during this period. He left school after gaining his School Certificate but was unsure if he passed or what grade he received. He was functionally illiterate. He worked for brief periods, first at the age of 13 and since then as a scaffolder, bricklayer, concreter, bobcat driver, forklift driver, fencer and as a dance teacher at a youth centre. In the months prior to his arrest he reported working as a dump truck driver in the mines. He said that he was able to develop the skills necessary to engage in work, although he had difficulty with following instructions and rapidly learning tasks. He left these jobs because he was required to undertake tests or complete forms. The psychologist observed that the applicant's motivation to work is now low, indeed that he would prefer not to work because the challenges in the workplace "are too overwhelming for him". Nonetheless, she observed, "employment and, importantly, the structure offered by work, will be beneficial in helping Mr Laupama achieve stability". She recommended that he seek employment in a supported work environment where people are aware of his limitations. The applicant told the psychologist that he entered into a supportive relationship "soon after being released from custody at the age 24", which enabled him to "avoid re-incarceration during the 12 months" it lasted. In several respects, however, the relationship was unhappy and ultimately his partner terminated the relationship after accusing the applicant of being unfaithful.
Cognitive assessment demonstrated a verbal score that placed the applicant in the Extremely Low to Borderline range and at the first percentile. On the performance scale, his score was Extremely Low to Low Average range, only outperforming four per cent of his age related peers. Overall, his intelligence scores fell in the Extremely Low to Borderline range, in the first percentile. The psychologist noted, "he can be considered an individual of limited intellect and will likely struggle with self-regulation and self-monitoring". These, and other tests, indicated that the applicant's cognitive capacity is limited but "with learning, he is able to develop functional skills for living". The applicant said that he had witnessed a number of shootings, including the shooting death of his brother and described ensuing symptoms consistent with chronic Post Traumatic Stress Disorder.
The psychologist's formulation concluded as follows - "For Mr Laupama the custodial environment offers him the protection, structure and safety he requires to function and alleviates the pressure associated with the realities of life. Since entering custody, Mr Laupama's mental health seems to have stabilised somewhat and this highlights further the deficits in his coping with community living. However, at present, there is still evidence of post-trauma and his low cognitive functioning will remain an ongoing concern. These factors combined with his history of antisocial behaviour will negatively impact his ability to function successfully in the community and avoid contact with the criminal justice system in the future."

The primary judge's reasons

The applicant had given evidence in his trial. His defence amounted to saying that he had gone with his friends to obtain marijuana and was drunk at the time, otherwise denying that he committed the offence. The primary judge noted that the applicant was vague and slow in his responses to questions and appeared at times to have difficulty understanding them, although there was no evidence called to suggest that he suffered from a mental, intellectual or drug induced disability. During the sentence proceedings his Honour observed that the way in which the applicant gave his evidence during the trial confirmed many of the observations made by the psychologist.
No objection was taken by the prosecutor to the tender of the psychologist's report. Although in submissions it was noted that the history it contained came from the applicant, was not sworn or tested and was largely self-serving, the criminal history in it was not corrected. The prosecutor appeared to accept that the report set out the applicant's dysfunctional upbringing which created great difficulties in enabling him to adjust to the demands of daily life. He pointed out that it was disturbing that the applicant's position seemed to be that he preferred custody to being at liberty and, furthermore, appeared to be uninterested in obtaining employment on his release and the psychologist was guarded in relation to the issue of future offending.
The primary judge did not express a conclusion about the objective criminality of the first offence in terms of where it stood in a range of seriousness, but noted the various factors that bore on this question. By contrast, his Honour held that the second offence was "below the objective medium criminality for this range of offences … certainly at the higher end of the lower range." No issue is taken as to his Honour's approach to objective seriousness in respect of either offence: both the grounds of the application and the submissions made to this Court focused on the non-parole period and the indicative overlap of the non-parole periods to reach the aggregate non-parole period of 8 years and 4 months, a complaint, in other words, about the accumulation of the indicative sentences.
The primary judge quoted extensively from the psychologist's report and then commented - "[The applicant] … has a reasonably length[y] criminal history, being first convicted in 2006 when he was 20 years of age. It is surprising in view of his formative years as a child and teenager that there do not appear to be any offences before then. His offences, however, since then have been violent and usually involve attempts to obtain money. As a result of convictions for these matters he has been incarcerated for much of his adult life." [Emphasis added.]"
It is clear that his Honour had referred to the applicant's criminal history. His convictions after the first two did not involve attempts to get money. I would read the phrase "since then" as referring to the time he commenced to offend and thus to the first two offences on his record, which involved extensive periods of incarceration. Whether the applicant's history showed that he had been incarcerated for much of his adult life (which was what the psychologist reported the applicant as saying), is perhaps doubtful, but rather depends on what his Honour meant by "much". His Honour had earlier referred to the applicant's time as an adult as having involved "a substantial period of time in custody". To my mind, these imprecise terms are accurate enough and certainly do not bespeak error. Be that as it may, the primary judge accepted the psychologist's opinion that the applicant had "developed an institutionalisation that it is more convenient and easy for him to adopt and adhere to rules in an institutionalised settings rather than living within the community". His Honour said that he was not convinced that the applicant had demonstrated any remorse; there was an underlying suspicion that the offences were committed to ensure he was re-incarcerated. He accepted the evaluation of the psychologist that the applicant's prospects of not reoffending were not good.
His Honour concluded the discussion of the relevant objective, subjective and statutory considerations with the following - "The offences of such a significant violent nature that it is appropriate that the sentence pay particular attention to the protection of the community and I propose to sentence him with that in mind. Counsel for the offender has requested that I find special circumstances. I will vary slightly the ratio between the head sentence and the non-parole period to take into account the concepts of totality and proportionality in the overall sentencing of the offender." The ratio between the indicative non-parole and parole periods for the first offence was the default ratio in s 44 of the Crimes (Sentencing Procedure) Act but that in respect of the second was varied slightly, in that the indicative non-parole period was 4 years 9 months as distinct from the 4 years 10 ½ months which the default ratio would have yielded. The aggregate sentence was 11 years imprisonment with a non-parole period of 8 years 4 months. (The default ratio would have produced a non-parole period of 8 years 3 months. I do not doubt that his Honour had intended to apply the default ratio and the result was an error of calculation.)

Discussion

It is convenient to deal with the grounds of appeal together, as they are interrelated.
So far as the non-parole periods and the primary judge's finding of special circumstances are concerned (aside from the calculation error), his Honour's reasoning is reasonably clear and, indeed, justified. First, as to the ultimate non-parole period, it is apparent that the primary judge did not intend to impose a longer non-parole period than would have resulted from application of what might be called the default ratio in s 44 of the Crimes (Sentencing Procedure) Act: his Honour made no reference to the need to vary the ratio to increase the proportion of the sentence to be served in prison and a mere additional month - which his Honour's (miscounted) calculation produced - would have amounted to mere tinkering which, I am satisfied, was not his Honour's intention. So far as the adjustment to which his Honour referred in the above quoted passage is concerned, this was, as I read his Honour's remarks, designed to ensure that the aggregate sentence, despite accumulation of the indicative sentences, would nevertheless reflect the default ratio. The reference to "totality and proportionality" make it clear that his Honour had concluded that there was no basis, for example relating to rehabilitation or other personal considerations, for reducing the ultimate non-parole period which the default ratio would produce. It follows that the aggregate sentence reflected his Honour's conclusion as to the appropriate outcome and I am unpersuaded that it was inconsistent with his Honour's finding of special circumstances. It seems to me, however, that the calculation of the non-parole period imposed should be corrected, although this would result in a reduction of only a month.
Although this is not the subject of a distinct ground of appeal, it is submitted on the applicant's behalf additionally to the contention in the ground of appeal that the primary judge gave no or inadequate significance to his finding of institutionalisation in relation to the issue of special circumstances and erred in his conclusions about the effect of the psychological evidence tendered on behalf of the applicant. However, in addition to specifically accepting that the applicant "has developed an institutionalisation that [makes] it more convenient and easy for him to adopt and adhere to rules in institutionalised settings" and then setting out the substance of the psychologist's assessment of this problem, noting "his desire to remain in custody raises concerns about his risk of reoffending", his Honour went on also to note the possibility that he suffers from a post traumatic response, the results of the psychometric testing, problems with behavioural regulation and lack of skills for coping in the community. It is apparent that the primary judge accepted that all these matters were relevant to the applicant's conduct in the sense of his ability to avoid offending and the prospects for effective rehabilitation. He expected that some of these issues would be addressed in prison and by services available to him on release. Of particular importance was the applicant's indication to the psychologist (accepted as truthful) that, in effect, "he feels safer in custody and the pressures of reality are significantly reduced". His Honour concluded - "[The] emphasis must be upon deterrence, specific and general, and the protection of the community in preference to his rehabilitation … [which] if it does take place will have to do so within the confines … of imprisonment."
In oral submissions, counsel for the applicant responded to the point that the applicant's adult incarceration was considerably less than that indicated in the psychologist's report (adopted by the primary judge) by submitting that his Honour therefore acted under a misapprehension of the applicant's criminal history which led him to conclude that the applicant's chances of rehabilitation were worse than his history indicated. This was the first occasion upon which such a submission was made; it was not mentioned below on the applicant's behalf. Counsel pointed to the fact that the applicant had spent a significant period of his early childhood in a boys' home and submitted that the conclusion of the psychologist that he was institutionalised - as in effect stated by the applicant himself in his history - was appropriate but that his Honour's error about the extent of his adult incarceration meant that his scepticism about the applicant's prospects of rehabilitation was not justified or, at least, excessive.
Quite apart from the fact that the psychologist's report was tendered on the applicant's behalf without any mention of the error and on the basis that it should be accepted, I am of the opinion that a fair consideration of his Honour's reasons reveals, with respect, that his Honour considered the whole of the applicant's psychological situation as explored in the report and did not act simply on the basis that the extent of the applicant's incarceration significantly reduced his chances of rehabilitation. His Honour's observation that the applicant's lack of remorse and his apparent eagerness to be incarcerated, including having no "significant concern" about his incarceration on the current offence was entirely justified. Though some part of the opinion of the psychologist as to the extent of applicant's institutionalisation was based on a mistaken understanding of his criminal history, his Honour does not appear to have made the same error and was entitled to act on the basis that it was appropriate to place weight on the psychologist's conclusion, which was founded on other highly significant material. I think his Honour's discussion of this matter indicates that he was far more concerned with what the applicant himself had said about his feelings, attitudes and conduct. Furthermore, in considering the significance of this matter, there was no basis for inferring that it showed the applicant was actually able to cope in the community, since there was no evidence as to what he did when he was at large except for the time (perhaps a year) when he was able to be assisted by his partner. The fact that he had become involved in the offences for which he was being sentenced was eloquent evidence of his inability to avoid serious criminality.
It cannot be right to criticise here the judge's failure to take the period when the applicant was free explicitly into account, when the applicant put no material at all before the court about it except that he found it difficult to avoid re-incarceration in the absence of his partner's support. That it appears the applicant was not charged with any offences during this period does not, without more information about what he was actually doing, show much about his rehabilitation, particularly in light of his statements that he committed offences in order to be incarcerated - though the example he gave to the psychologist of riding a bicycle whilst intoxicated excites scepticism that this is what he actually had in mind. However, this matter was not relied on below, perhaps for good reason, and it is not for this Court to consider it now.
Counsel in this Court relied on the primary judge's conclusion as to the applicant's institutionalisation in his submissions about special circumstances. Counsel submitted that the risk of institutionalisation, even if in the face of entrenched and serious recidivism, may justify a finding of special circumstances, citing Jackson v R [2010] NSWCCA 162 and Jinnette v R [2012] NSWCCA 217. In Jinnette Johnson J (Hoeben JA (as his Honour then was) and Beech-Jones J agreeing), observed (at [98]) that the risk of institutionalisation is a factor capable of constituting "special circumstances" but this did not require such a finding. As here, Jinnette was very likely already institutionalised when he came to be sentenced and would almost certainly be so when his sentence had been served. Johnson J pointed out (at [103]) that the relevance of this factor might give rise to a need for an increased period of conditional and supervised liberty "to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend". His Honour went on to say - "[104] It is the case that the Applicant has had a terrible life involving a dysfunctional family and constant negative events involving abuse and exploitation of him by others. There is no way that his life can be recalled and a more positive life substituted for it. All reasonable persons will have a considerable measure of sympathy for him. [105] At the same time, reasonable members of the community will observe what the Applicant has done consistently when at large in the community, offending in different ways including placing members of the community at risk and harming them. There is a history of failed conditional liberty and breaches of parole. The criminal justice system has no ready solution for cases such as this given the relatively blunt instruments available to it. [106] The protection of the community remains a most important consideration in a case such as this, involving incapacitation through incarceration of the Applicant, and also the protection of the community in taking reasonable steps to provide an opportunity for intensive supervision when the Applicant comes to be considered for release on parole."
The applicant has also a history of breaching bonds and I would accept that the same considerations to which Johnson J referred are applicable in this case. However, it is obvious that the principles to which his Honour referred may have different outcomes in different cases and his Honour was far from suggesting that institutionalisation must in every case amount to special circumstances requiring a longer parole period than otherwise would result by applying the default ratio, so that the failure to do so amounts to appealable error. The primary judge discussed at some length the rehabilitative needs of the applicant, including supervision of various kinds upon release. Furthermore, the additional problem in the present case was the applicant's attitude towards incarceration. I am not persuaded that his Honour overlooked the significance of institutionalisation in the applicant's case for the purpose of considering special circumstances.

Conclusion

I would reject all three grounds of appeal. I propose the following orders - 1. Leave to appeal against sentence granted. 2. Appeal allowed in part by varying the non-parole period from 8 years 4 months to 8 years 3 months, commencing on 26 June 2013 and expiring on 25 September 2021. The earliest date upon which the offender is eligible for release is 25 September 2021. 3. Otherwise appeal dismissed.
R A HULME J: I agree with Adams J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2015

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