R v Hopoi

Court of Criminal Appeal (NSW)|2014-10-27|Before: Hoeben CJ, Hulme J, Davies J

Judgment 1HOEBEN CJ AT CL: I agree with Davies J. 2R A HULME J: I agree with Davies J. 3DAVIES J: On 10 July 2013 the Respondent pleaded guilty at Burwood Local Court to robbery in circumstances of aggravation with wounding contrary to s 96 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment. 4On 23 July 2014 Judge Williams in the District Court sentenced the Respondent by adjourning the proceedings to 29 October 2014 pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour intended that by that date there would be a report from Probation and Parole or Community Corrections Service in respect of the matters provided for in s 11 and particularly the Respondent's rehabilitation progress. 5The Sentencing Judge imposed a number of conditions on the deferral including abstinence from alcohol and illicit drugs, and participation in all programs required by the Respondent's case manager. 6The Crown now appeals on the basis that the sentence is manifestly inadequate. 7Some days after the appeal was argued, the parties informed the Court that when the matter came back before the Sentencing Judge for review on 29 October 2014 his Honour had adjourned the matter for sentence on 6 February 2015 and had ordered an assessment of the Respondent for an Intensive Corrections Order. This Court required the parties to provide a transcript of the hearing on 29 October so that further consideration could be given to the disposition of the appeal. 8The parties filed further written submissions. The Crown submissions proceeded upon an acceptance that the s 11 order had been revoked. For reasons which follow, I do not believe that to be the case. The Crown nonetheless pressed for the Court to deliver a judgment. Senior counsel for the respondent argued that as the s 11 order was no longer "on foot" the Court was deprived of jurisdiction. 9The transcript confirms the order made for an ICO assessment and that the proceedings have been adjourned for sentence to 6 February 2015. It is notable, however, that whilst there was discussion about the possibility of revoking the s 11 order, no such order was actually made. Moreover, the adjournment was not ordered with the intention of obviating the need for a judgment from this Court on the appeal; indeed, it was ordered with the expectation that a judgment of this Court would be forthcoming. Accordingly, orders will be made to dispose of the appeal on the basis that the sentence in question is a deferral under s 11.

Facts of the offending 10The agreed facts at the sentence hearing disclosed the following. 11At about 3:35 am on Sunday 1 April 2012, Hafizul Haque, was on shift working as a taxi driver. At this time, the driver acknowledged a radio job to pick up three passengers from a residence at Matraville with a destination of Campsie. 12The driver drove to Matraville where three men got into the taxi. Benn Vakalahi sat in the front passenger seat, Steven Fonua sat behind Vakaiahi and the Respondent sat directly behind the driver. 13As the driver drove towards Campsie, all three men provided directions. As they approached the end of the cul de sac in Reid Avenue, the driver said, "Just here?" to which the Respondent replied, "Mmmmmm". 14All three men opened the taxi doors and got out of the vehicle. The Respondent went to the driver's side of the taxi, opened the driver's door and reached in grabbing the keys and switching the engine off. The Respondent held on to the keys and said to the driver "Where is your money?" 15The Respondent reached across the driver and felt around his right trouser pocket and said "What is this? Take it out". The driver reached into his pocket and took out two fuel receipts and showed the Respondent who took them and threw them on the ground. 16The Respondent then raised his right hand and punched the driver with a closed fist on the chin. As a result of the punch the driver began to bleed from a wound to his chin. 17The Respondent repeated "Where is your money?" Fearing for his safety, the driver reached into his top shirt pocket and took out $800 - $900 in cash and EFTPOS receipts totalling $200. The Respondnent snatched the money and EFTPOS receipts from the driver's hand and fled the scene towards Jarrett Street with Vakalahi and Fonua. 18The driver pressed the emergency button in the taxi and called triple 0 from his mobile phone. Police arrived shortly afterward. 19The driver was conveyed to Canterbury Hospital and was treated for an open wound approximately 2 centimetres in length beneath his chin that required three stitches. The driver was in a lot of pain and need to have a tetanus shot. 20The driver felt very scared and intimidated when he was struck by the Respondent. 21Police obtained CCTV footage stills from the taxi that showed the Respondent leaning over the driver's seat, and the other two men a short distance away as the Respondent assaulted the driver. 22On 3 August 2012 police obtained a warrant to intercept the Respondent's mobile telephone. 23On 9 August 2012 the Respondent spoke to Ben Vakalahi on the telephone. Vakalahi advised the Respondent that police were looking for them as the taxi driver was in a coma. In fact, the driver was never in a coma. In the course of the conversation the Respondent said:

I only jabbed him, I didn't knock him out. I just jabbed...him and then he handed me the money.
I just jabbed him. When I jabbed him, he um, handed over the money and then he, when we were going he got out of the car and was looking at us.
It wasn't like fuckin' seven punches, you know? It was just one jab. 24At about 7:00 am on Thursday 11 October 2012, police attended Room 216 at 9 Darlinghurst Road, Kings Cross (Astoria Hotel) to execute a search warrant. The Respondent was arrested and transported to Kings Cross Police Station. 25At Kings Cross Police Station, the Respondent was cautioned and agreed to participate in a recorded interview. During the interview when asked what he could tell police about a taxi driver who had been robbed in Reid Avenue, Clemton Park on 1 April, 2012, the Respondent:
informed police that he had been at a party in Matraville that night with Ben Vakalahi and Steven Fonua
said he could not remember as he was intoxicated but did remember getting out and running from the taxi. He told police he went to the party between 6pm and 8pm on Saturday night with about $200 but spent it on alcohol. He said he was intoxicated that day and night and drank about 10 bottles of full strength beer and 10 glasses of bourbon or vodka mixed with cola at the party.
remembered leaving the party in a taxi with Fonua and Vakalahi to go to his house in Troy Street, Campsie where he and Fonua lived. He assumed he or Fonua directed the taxi driver back to Campsie. When the taxi stopped at Reid Avenue, he stated he and Fonua ran back to their house as he had no money to pay for the taxi fare; and
said he had no knowledge of the robbery and said he did not commit the robbery. 26The Respondent pleaded guilty to this matter in the Local Court and was committed for sentence to the District Court.

Subjective factors 27The Respondent was born on 29 June 1978 and was aged 33 years at the date of the offence. 28The Respondent is of Tongan descent and was raised in Auckland with a relatively good childhood. He went to year 11 at school and then came to Australia in 1999 where he worked as a security guard until about 2006. Since 2012 he has been working as a forklift driver at Toll. 29He started using cannabis at about age 16 or 17 and became a heavy drinker of beer as well. He had a gambling problem from about 2000 and would spend up to $200 each time that he used the poker machines. 30He has been in a relationship with his wife Joyce for some years. Five children live with them, the eldest of whom is his wife's son from a previous relationship. He and his wife have four children, three boys aged 14, 13 and 10 and a girl aged 9. 31The Sentencing Judge accepted the Respondent's evidence that things started to fall apart in 2012 when his wife and the children left for some months as a result of her perception that drinking and gambling were becoming a significant problem for the Respondent. It appears that they have now reconciled. 32The Respondent has three offences on his record prior to the offence under consideration. On 21 December 2000 he was placed on a two year s 9 bond for being armed with intent to commit an indictable offence. On 22 October 2007 he was fined $500 with court costs for assault occasioning actual bodily harm. There was a third offence of driving whilst his licence was suspended. The two serious offences were also committed whilst he was under the influence of alcohol. 33His Honour noted that the Respondent pleaded guilty at the earliest possible opportunity and he said that if a term of imprisonment was to be imposed then a 25% discount would be appropriate. 34The Sentencing Judge had before him a report from a psychologist, Dr Emma Collins, who had reviewed the Respondent and conducted psychometric testing. The Respondent additionally gave evidence at the sentence hearing and confirmed that what he told Dr Collins was true. 35It is apparent from reading the Remarks on Sentence that the Sentencing Judge was impressed with Dr Collins' report. The Sentencing Judge said: Dr Collins says that since his arrest he has returned to a pro-social lifestyle that includes rekindling with his wife, stable employment and a reduction of his substance abuse issues. He does not impress with significant needs as to treatment. His functioning is stable but ongoing observation of his substance abuse would be preferred. He is not at significant risk of recidivism and incarceration, according to Dr Collins, would undo his good efforts with regard to maintaining employment and providing for his family and the risk of substance abuse would probably increase after incarceration if he has difficulty securing employment. That opinion is a powerful factor in leading me to the view that I should today invoke the provisions of s 11. 36His Honour found that the Respondent was remorseful. He accepted, however, the Crown's submission that a very guarded approach to rehabilitation and remorse should be taken. His Honour went on to say that this submission was a significant factor that influenced him in adopting the course that he proposed under s 11. 37His Honour appeared to accept the submission made on the Respondent's behalf that if a sentence had the effect of turning a offender towards a criminal way of life the protection of the community is to that extent impaired, whereas if the sentence induced or assisted the avoidance of further offending the protection of the community was to that extent enhanced.

Submissions 38The Respondent submitted that a deferral under s 11 was clearly open to the Sentencing Judge and that his discretion did not miscarry. 39In response to the Crown's submission that the Sentencing Judge ought to have assessed the objective seriousness of the offence, the Respondent submitted that the Sentencing Judge knew what the objective seriousness of the offence was because the facts of the matter were not disputed. Further, the fact that the offence was objectively serious and would likely lead to a full time period of imprisonment did not make the deferral erroneous. 40The Respondent submitted further that the overall effect of the evidence from the Respondent, his wife and the psychologist was that his Honour's view that he was guarded as to any position relating to the prospects of rehabilitation justified the deferral. The prospects of rehabilitation would assist in determining the appropriate sentence and the length of that sentence. 41The Respondent drew attention to a number of passages in the Crown's submissions before the Sentencing Judge in support of the proposition that his Honour ought to have a guarded view of the Respondent's rehabilitation because his problems with alcohol had not been addressed. The Respondent also drew attention to a number of the conditions of the deferral in relation to abstinence from alcohol, the requirement for urine testing and the requirement to attend all programs directed by the case manager as supporting the view that there needed to be further time to assess his capacity and prospects for rehabilitation. 42In relation to delay the Respondent said that this issue had less impact in the present case where there had already been significant delay and not through the fault of the Respondent. 43Finally, the Respondent submitted that in the exercise of the residual discretion the appeal should be refused. It was significant that the matter was due to come back before the Sentencing Judge in a short time. It was suggested that there might be fresh and/or other material before the Sentencing Judge at that time which would assist him in coming to the appropriate view of the sentence. In that way it was more appropriate that the matter be left to the Sentencing Judge rather than for this Court to intervene.

Consideration 44This Court's decision in R v Farrell [2014] NSWCCA 30 has identified the appropriate considerations in relation to a s 11 deferral: (a) It is necessary for the Sentencing Judge to make findings of fact and an assessment of the objective seriousness of the offence before adjourning a matter under s 11: R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [38]; (b) A Crown appeal is available under s 5D of the Criminal Appeal Act 1912 (NSW) from a s 11 deferral: Farrell at [36]; (c) A deferral under s 11 will be manifestly inadequate if it is demonstrably obvious that a sentence was called for: Farrell at [36]; (d) A s 11 deferral should not be granted unless there are good reasons for concluding that it is likely to assist the Court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period: R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 at [64]; (e) Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice by reason of the delay: Palu at [30]; (f) A s 11 deferral is not confined to cases where something other than a full-time custodial sentence is contemplated by a sentencing judge if rehabilitation is successful: Trindall at [64]; R v Brown [2009] NSWCCA 6; 193 A Crim R 574 at [22]. 45Bearing in mind those principles I consider that the Sentencing Judge erred in the exercise of his discretion in deferring sentence for the following reasons. 46First, the offence occurred on 1 April 2012. The Respondent was arrested on 11 October 2012. He pleaded guilty on 10 July 2013. The matter came before the District Court for sentence on 12 May 2014. It was adjourned. The sentencing hearing took place on 23 July 2014 and on that day the Sentencing Judge deferred sentence. 47In the first instance he stood the sentence over for a three month period indicating that: Rather than making it 12 months at the moment ... my intention is that there will be three monthly reviews. The strong inference is that his Honour was minded not to pass sentence for a period of 12 months from 23 July 2014. The result would be that the Respondent would be sentenced more than three years after the offence was committed. If at that time a custodial sentence was to be imposed it would involve unfairness to the Respondent and might result in a miscarriage of justice. 48Secondly, there was ample evidence to indicate the state of the Respondent's rehabilitation at the time of the sentencing hearing and to enable the Sentencing Judge to assess the likelihood of future rehabilitation. The Sentencing Judge relied in that regard on the report from Dr Collins and summarised a portion of it dealing with the Respondent's rehabilitation that is set out at [34] above. 49However, as that summary of the report made clear, Dr Collins thought his position was stable, he did not impress with significant needs as to treatment of his substance abuse but ongoing observation would be preferred. Accordingly, Dr Collins' opinion did not support a deferral. The Sentencing Judge appears to have been impressed by Dr Collins' view that incarceration might undo the good work that had already been achieved, and for that reason moved to a deferral. Dr Collins' view was more particularly directed to a final non-custodial sentence. 50The Crown's submissions concerning the guarded view about the Respondent's rehabilitation should not have been seen by the Sentencing Judge as supporting any position that the time had not yet arrived for the imposition of a sentence and suggesting a deferral. More than two years had passed since the offending. The Respondent had been given ample time to demonstrate that he had adequately addressed his alcohol and gambling problems, the former being far more relevant to the offending. At that time his rehabilitation was relevant at least for considerations of special circumstances and the likelihood of reoffending. 51Thirdly, the Sentencing Judge made no finding of the objective seriousness of the offence. His Honour simply set out the submission of the Respondent's counsel that the offence was towards the lower end of the scale notwithstanding the vulnerability of the victim. The closest the Sentencing Judge came to making his own assessment of the objective seriousness was his statement that: On any view it was a cowardly and despicable attack on a vulnerable victim which deserves severe punishment. Whilst it may be accepted that the Sentencing Judge found the necessary facts because they were largely undisputed, it was still incumbent upon his Honour to assess the objective seriousness of the offending before considering whether a deferral was appropriate. In failing to do so the Sentencing Judge's discretion miscarried. 52Fourthly, given the nature of the offending and this Court's decision in R v Henry (1999) NSWCCA 111; (1999) 46 NSWLR 346 there were no good reasons for concluding that a deferral was likely to assist the Court in determining whether the Respondent should be sent to gaol. In Henry Spigelman CJ (with whom the four other members of the bench generally agreed) noted at [113] that this Court had consistently said that, except in exceptional circumstances, a fulltime custodial sentence for an offence of armed robbery should be imposed. . 53Henry is also the appropriate guideline in respect of offences contrary to s 96 of the Crimes Act 1900 (NSW); R v Thomas [2007] NSWCCA 269 at [22] and [91]. Most of the features identified in Henry at [162] were present in the offence under consideration. Although a weapon was not used, actual violence was employed. The maximum penalty for an offence under s 96 is 25 years imprisonment. The maximum penalty for an offence under s 97(1) with respect to which the Henry guideline judgment was concerned is 20 years imprisonment. In the light of that matter and the decision in Thomas it should be accepted, therefore, that exceptional circumstances need to be shown for the imposition of other than a fulltime custodial penalty for an offence against s 96. Exceptional circumstances are not apparent on the materials placed before this Court. 54Finally, given the evidence before the Sentencing Judge concerning the Respondent, the period of time since the offending and the Respondent's subsequent rehabilitation it is difficult to see how a deferral would have assisted the Court in fixing the length of the sentence or the non-parole period. 55All of these matters make it apparent that a sentence, rather than deferral, was called for after the sentencing hearing had concluded. The deferral of that sentence demonstrates a manifestly inadequate exercise of the sentencing discretion. 56The Respondent's Senior counsel's further submissions invited the Court to exercise its discretion not to intervene on the basis that there was no utility in doing so having regard to the primary purpose of Crown appeals being to afford guidance to sentencing judges: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 XCLR 462 at [1] - [2], [36] and [43]. 57I am not persuaded that there is any need to exercise the residual discretion. There is no utility in doing so having regard to the nature of the order I propose to dispose of the appeal. 58I propose the following orders: (1) Appeal allowed. (2) Remit the matter to the District Court for sentence of the Respondent according to law.

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: 26 November 2014

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