R v Kohunui & Kohunui [2009] VSCA 31

Court of Appeal (Vic)|2009-03-11|Before: VINCENT, NETTLE and KELLAM JJA

Criminal law - Sentencing - Manslaughter - Armed robbery - Parity - Plea of guilty - Discount applicable to assistance given to authorities - Appeal allowed - Appellants re-sentenced.

1 I have read the judgment of Kellam JA and I agree that the appeal should be allowed for the reasons his Honour has expressed and the appellants re-sentenced as proposed by his Honour.

2 I agree with Kellam JA that the appeals should be allowed and the appellants re-sentenced as he proposes.

3 Both appellants appeal sentences imposed on them in the Supreme Court on 8 May 2007. Each of them pleaded guilty to one count of manslaughter and two counts of armed robbery. The maximum penalty for manslaughter is 20 years' imprisonment and the maximum penalty for armed robbery is 25 years' imprisonment.

4 On 14 March 2008 leave to appeal was granted to both appellants by a single judge of this Court.

On count 1, a count of manslaughter, eight years' imprisonment.
On count 2, a count of armed robbery, four years' imprisonment.
On count 3, a count of armed robbery, five years' imprisonment.

6 His Honour directed in each case that two years of the sentence of imprisonment imposed on count 2, and three years of the sentence of imprisonment imposed on count 3 be cumulative upon the term of imprisonment imposed on count 1. That resulted in each case to a total effective sentence of 13 years' imprisonment with respect of which a non-parole period of nine years'

7 Each appellant now appeals the sentence imposed upon him.

8 The appellants are brothers, John Kohunui being the elder. In 2004 the two appellants, together with Mark Herbert were employed as car detailers at a second hand car dealership in Moorabbin. Late in the evening of Tuesday 2 November 2004, Melbourne Cup Day, the three of them attended at the Freccia Azzura Club, a gaming venue in Keysborough, armed with knives and clothed in dark clothing, including hooded jackets, peaked caps and gloves. Tame Kohunui armed with a meat cleaver entered the premises first. Mark Herbert and John Kohunui followed. The three of them then entered the gaming room where two female employees were situated. As he approached the employees Tame Kohunui raised the meat cleaver with which he was armed. John Kohunui was armed with a knife. The two staff members were ordered to show where the money was located. One of the employees went to a safe room adjoining the bar in company with John Kohunui. The other employee was on the floor being guarded by Tame Kohunui. Mark Herbert guarded the door to the gaming room. The safe was unlocked and John Kohunui removed cash from the safe and placed it into a carry bag. All three offenders then left the scene. $31,330 was stolen in the course of the armed robbery. These circumstances formed the factual basis of count 3, a count of armed robbery.

9 Subsequently on 28 November 2004 John Kohunui, Tame Kohunui and a person alleged by the prosecution to be Wally White, again determined to conduct an armed robbery at the Freccia Azzura Club. However, as a consequence of the armed robbery which had been conducted by the appellants in company with Mark Herbert on 2 November 2004, the Freccia Azzura Club had employed an armed security guard, Jason Gully. Mr Gully was on duty on the night of 28 November 2004. He was armed with a .38 calibre revolver. At approximately 11.40 pm each of the appellants together with Wally White attended at the club. The three of them were wearing dark clothing including hooded tops, gloves and balaclavas. White was armed with a high powered rifle which is said to have resembled an AK 47. John and Tame Kohunui were each armed with knives. Mr Gully was standing outside the front foyer of the club at the time of their arrival.

10 All three offenders rushed up to Mr Gully who responded by moving for his handgun which was situated in a holster attached to his waist belt. White pointed his rifle at close range at Mr Gully who dropped his hands to his side. Tame Kohunui ran into the front foyer of the club, whilst John Kohunui and White took control of Mr Gully. He was ordered to go into the premises and he did so at gunpoint followed by White and by John Kohunui who was then armed with a knife. In the meantime Tame Kohunui had entered the gaming area with a knife raised in his hand. At the time seven patrons and two female staff were present. Tame Kohunui went behind the bar to the cashier's counter where he brandished his knife at the cashier telling her to keep her hands away from the security alarm. John Kohunui followed Tame Kohunui into the cashier's area and demanded that the employee open the safe. She did so and John Kohunui then emptied cash from the safe into a bag.

11 In the meantime White remained in the gaming area pointing his rifle at Mr Gully and yelling instructions to him. Mr Gully refused to comply with White's instructions and held his ground. This 'stand off' between White and Mr Gully continued for some moments until Tame Kohunui who at that time was in the gaming room approached Mr Gully. As he approached, Mr Gully removed his handgun from his holster and fired a single shot at Tame Kohunui. The bullet struck Tame Kohunui in the back and he fell to the ground. White then opened fire at Mr Gully and discharged at least four rounds of ammunition at him at close range. Two of those rounds struck him causing him fatal injuries to which soon thereafter he succumbed, but not before firing two shots from his handgun in the direction of White. Tame Kohunui got to his feet and limped out of the premises. However John Kohunui continued to empty the contents of the safe, and having done so then demanded that the staff tell him the location of the rest of the money. He was then directed to the cashier's drawer where he removed more cash. White walked to where Mr Gully was lying on the floor, picked up his handgun and he and John Kohunui then left the premises together.

12 A later reconciliation revealed that the sum of $10,619 had been stolen. In summary these events formed the factual basis of count 1, a count of manslaughter and count 2, a count of armed robbery.

13 The next day John and Tame Kohunui fled to Queensland but returned to Melbourne on or about 16 December 2004. They were both arrested by police on 12 January 2005. Tame Kohunui admitted his involvement in the robberies and admitted being shot by Mr Gully in the course of the second armed robbery. He did not tell police who his accomplices were in relation to either robbery. John Kohunui made 'no comment' responses to questions put to him by police.

14 Subsequently John Kohunui, Tame Kohunui and Wally White were all charged with the murder of Jason Gully and with a count of armed robbery arising out of the events of 29 November 2004 at the Freccia Azzura Club. John Kohunui, Tame Kohunui and Mark Herbert were all charged with armed robbery arising out of the robbery conducted at the Freccia Azzura Club on 2 November 2004.

15 The trial of all accused persons was fixed for hearing on 19 April 2007. Each of the appellants pleaded not guilty to one count of murder and two counts of armed robbery. On the following day and before the commencement of their trial the prosecution amended the presentment so that the charge of murder against each of the Kohunui brothers was amended to one of manslaughter. Each of them was then re-arraigned and they pleaded guilty to one count of manslaughter and to two counts of armed robbery. The prosecution accepted the plea to manslaughter on the basis that the death of Mr Gully occurred in consequence of an unlawful and dangerous act, the unlawful act being the act of taking a firearm to a robbery and the dangerous act consisting of the risk that a reasonable person would appreciate that serious injury could thereby result. In the course of their pleas each of the appellants undertook to give evidence that the person who fired the shots which killed Jason Gully was Wally White. However, their undertaking was restricted to giving evidence against White. They did not cooperate with police in identifying the person who was their accomplice in the first armed robbery which had been conducted at the Freccia Azzura Club on 2 November 2004.

16 Each appellant was sentenced on 8 May 2007. The sentencing judge having considered issues relevant to parity, concluded that in all the circumstances each of the appellants should be sentenced in the same manner as the other.

17 In the course of his sentencing remarks his Honour referred to the assistance agreed to be given in the prosecution of Wally White and said that such assistance entitled each of the appellants to 'a very considerable discount'. He said that in each of their cases two factors were of particular importance. He said:

The first is the serious nature and gravity of the offences and, in particular, the tragic and shocking consequences of your actions in the second armed robbery in that an innocent life was taken away. The second is the fact that you have now made a full statement concerning the events of the second armed robbery, where that life was so tragically taken away, but not the first, and that you have undertaken to give evidence against the person you say, and the Crown alleges, was the one who pulled the trigger.

18 In relation to count 1, the count of manslaughter, the sentencing judge imposed a sentence of eight years' imprisonment upon each appellant. He stated in each case that he had 'discounted this sentence substantially' because of the cooperation and the undertaking given to give evidence in the trial of White. Likewise, in relation to count 2, the count of armed robbery, which was committed at the same time as the manslaughter of Jason Gully, the sentencing judge stated that he had discounted the sentence substantially by reason of the cooperation and the undertaking given by each appellant. He imposed a sentence of four years' imprisonment.

19 In relation to the first armed robbery he imposed a sentence of five years' imprisonment. In doing so he said:

I have not discounted this sentence for your cooperation and your undertaking to give evidence because you have not fully disclosed the circumstances of this offence in the statement you have now made.

20 The trial of Wally White on the charges of murder and armed robbery commenced on 14 May 2007 but the jury was discharged without verdict on 8 June 2007 as they were unable to reach agreement. Subsequently and on 16 July 2007 Mark Herbert pleaded guilty to one count of armed robbery. Herbert agreed to give evidence in the re-trial of Wally White, which evidence was said by the prosecution to be 'very valuable'. Herbert was sentenced to three years and nine months' imprisonment in respect of the part played by him in the armed robbery conducted on Melbourne Cup Day 2004 at the Freccia Azzura Club in company with John and Tame Kohunui. White was subsequently retried. Each of the appellants gave evidence at his re-trial, as did Herbert. On 28 February 2008 White was sentenced to 22 years' imprisonment in respect of the murder of Jason Gully. He was sentenced to seven years' imprisonment in respect of the armed robbery of the Freccia Azzura Club conducted in company with the appellants. After cumulation, he was sentenced to a total effective sentence of 26 years' imprisonment with a non-parole period of 20 years' imprisonment.

21 John Kohunui relies on two grounds of appeal. First, it is submitted that the sentencing judge was in error in refusing to impose a less severe sentence on count 3 as a consequence of John Kohunui's undertaking to give evidence at the trial of Wally White. Secondly, it is contended that in all the circumstances, and particularly in the light of the undertaking to give evidence, the sentences imposed upon him, are manifestly excessive. In addition leave is sought to rely upon affidavit material relating to the evidence given by John Kohunui in the trial of Wally White as being relevant new evidence.

22 Tame Kohunui also contends that the sentencing judge was in error in failing to discount the sentence imposed on count 3 on account of the appellant's cooperation with the police and his undertaking to give evidence (ground 1), and, likewise submits that the sentence imposed upon him was manifestly excessive (ground 6). In addition it is submitted that the sentencing judge was in error in imposing the same sentence upon Tame Kohunui as upon John Kohunui (ground 3) and that the sentencing judge failed to have sufficient regard to the principle of totality (ground 5). Grounds 2 and 4 of the full statement of grounds filed with the Court are not now relied upon.

The discount for assistance given to authorities

23 It is well established that high public policy dictates that a person who pleads guilty and renders assistance of a high order to the prosecution is to be rewarded by a substantial discount for what would otherwise be their sentence.

24 In R v Duncan[1] Callaway JA summarised the principles which applied in circumstances whereby a person pleaded guilty and provided (or agreed to provide) assistance to authorities in the following terms:

I mention some of them without any pretence of being exhaustive or any attempt at detail.

Both the plea of guilty and significant assistance to the authorities usually justify some mitigation of punishment in the exercise of the wide discretion conferred on a sentencing judge. It is referred to as a "discount" to make it clear that a sentence is never increased or made more severe because an accused person puts the Crown to its proof or declines to give such assistance.
The distinction to which I have just adverted is practical, whether or not it is logical or easily understood. It serves to inhibit a wrong approach to sentencing. In that respect it is like the proposition that, whilst remorse is a circumstance of mitigation, its absence is not an aggravating factor.
In the case of a suspended or partially suspended sentence ... the discount applies to the sentence itself. ...
In other cases of imprisonment the discount applies in the first instance to the head sentence, because the latter is imposed on the hypothesis that the prisoner may have to serve every day ...
Having affected the head sentence, the discount will inevitably affect the non-parole period. The plea or the assistance may even be entitled to additional weight at that stage, for example if it evidences enhanced prospects of rehabilitation.
In appropriate circumstances the discount for assistance may be very considerable indeed. Even where it does not evidence repentance or foreshadow amendment of life, a large reduction may be made for purely utilitarian purposes dictated by the public interest.

25 That said, however, there is no mechanical or mathematical approach to the discount which should be given. As Vincent AJA (as he then was) said in R v Cuthbertson:[2]

Over recent years the courts have grappled on a number of occasions with the problem of the extent to which co-operation given by persons to investigative authorities and through the giving of evidence against other persons should operate to their favour with respect to the imposition of sentences for their own conduct. From time to time it has been suggested that specific levels of discount could be identified as appropriate. The more recent and, in my opinion, far better view is that no mechanical or mathematical approach to the calculation of what have been called 'informer's discounts' can sensibly be made. As Nathan J pointed out in his judgment in R v Mundy, Beaumont and Despot (1994) 76 A Crim R 92, the factors which are relevant to the assessment of the significance of such co-operation for sentencing purposes vary dramatically from case to case and are, for practical purposes, incapable of assessment by reference to some such formula.

26 However, it is clear as pointed out by Callaway JA in the passage referred to above in R v Duncan, that any discount to be given is to apply to both the head sentence and to the non-parole period fixed. It is also apparent that offenders who assist police with their enquiries into the instant offence are entitled to have such assistance taken into account in their favour. In the case before us the sentencing judge took the view correctly that a substantial discount was to be applied in relation to the pleas of guilty made by each appellant to the counts of manslaughter and armed robbery which offences occurred on 28 November 2004. He did that because of their undertakings to give evidence in the trial of Wally White. However he declined to make any allowance for that co-operation in relation to the earlier armed robbery because of their lack of co-operation in relation to revealing the identity of their co-offender in the first armed robbery.

27 In my view his Honour was in error in failing to give credit for the co-operation and assistance provided by each appellant when fixing a sentence in respect of the first armed robbery. There were a number of factors arising out of the assistance provided to authorities and which were directly relevant to consideration of the sentence to be imposed on count 3. His Honour accepted that as a result of their co-operation the appellants were likely to serve their sentences in protective custody involving more burdensome conditions than would otherwise be the case. His Honour accepted that by virtue of their co-operation the appellants had placed themselves in a position of personal danger. These factors were as relevant to the sentence to be served on count 3 as they were to counts 1 and 2. As Tadgell JA said in R v Carmody:[3]

Credit for sentencing purposes which is deserved, for instance, for a plea of guilty or for remorse otherwise demonstrated, or for an absence of prior convictions or for good prospects of rehabilitation, would ordinarily, and in the absence of good reason, be available for each offence on which sentence fell to be passed.

28 In that case the offender had been sentenced in relation to two counts of importation of heroin contrary to s 233B of the Customs Act 1901 (see Cth). In addition she had pleaded guilty to trafficking in the product of the first importation contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981. The offender provided assistance to police in relation to the trafficking matter. The sentencing judge in handing down sentence said:

The co-operation that you have promised is a matter in respect which you are entitled to some credit. That co-operation relates to the offence of trafficking, a State offence, and I have accordingly reduced both the head and minimum term in respect of count 2 to allow for it. I have not correspondingly reduced the sentence to be imposed on count 3, the Commonwealth offence, for to do so would be to give a double credit.

Credit having been allowed for co-operation in respect of the sentence for the trafficking offence, it ought logically to have been allowed also in respect of the sentence for the Commonwealth offence. Sentencing error is therefore shown.

30 The above is not to say that his Honour was in error in considering that the lack of co-operation in relation to the first armed robbery of each appellant was a relevant matter to be taken into account in relation to the discount.[4] The fact that the co-operation was not full and complete is a relevant matter in consideration of the quality of the assistance given by the person accused and the weight to be attached to such circumstance in the consideration of the appropriate discount. However, for the reasons set out above I conclude that his Honour was in error in applying the discount to two counts which he considered were relevant to the provision of co-operation, and not to a third which he considered was not so relevant. The error in my view necessitates a re-sentencing of each of the appellants.

31 John Kohunui was born on 4 April 1978 and spent his early years in New Zealand. He grew up in an environment of domestic violence. His mother brought him and his younger brother Tame to Australia when he was approximately ten years of age. On his plea counsel informed the sentencing judge that he had attended a number of high schools and left school having completed Year 11. Although at one time he had been an accomplished rugby player he commenced to use heroin at approximately the age of 15 years. Between leaving school and being sentenced at 29 years of age he had had little in the way of gainful employment. He had many prior convictions for burglary, theft and other offences of dishonesty as well as many prior convictions for drug trafficking, use and possession. As his Honour observed, John Kohunui's criminal history was a bad one but a history which revealed little in the way of prior violence. He had been convicted at the age of 18 of an offence of causing injury intentionally or recklessly and convicted in 2000 for possession of a regulated weapon. Throughout his adult life John Kohunui had a serious problem with the abuse of illegal drugs and with alcohol abuse. A psychological report from consultant psychologist Mr Watson-Munro was before the sentencing judge. That report noted that John Kohunui had had a history of poly-substance abuse commencing at approximately 14 years of age and that an addiction to 'ice' was relevant to his capacity to exercise judgement at the time of the offences. The sentencing judge noted, and correctly in my view that 'there were some indications of contrition and remorse in the material, but they are not strong'.

32 Like his brother, Tame Kohunui was born in New Zealand and was a talented sportsman. He was born on 20 September 1979 and accordingly was 25 years of age at the time of the commission of the offences in question. He was in the Victorian State under 17 team at one stage. However, in 1994 he was a passenger on a bicycle which was struck by a car whereby he suffered head and other injuries. He was told not to engage in contact sport. He left school having completed Year 10 and initially had a job in a factory but began associating with older boys and again, like his brother, was born into an environment of family drug abuse. He had had little employment since the time of leaving school until the time of sentencing. He was then aged 27 years of age. His criminal history was a significant one. He had a number of prior convictions for possession of illegal drugs and one prior conviction for trafficking. Of considerable significance is the fact that in 1998 he was convicted in the County Court of offences of aggravated burglary, armed robbery and causing injury intentionally or recklessly for which he was sentenced to 21 months in a youth training centre. In 1999 he was convicted of attempted armed robbery for which he was sentenced to a term of imprisonment of three years and six months with a non-parole period of 27 months. The evidence before the sentencing judge was that Tame Kohunui likewise had a serious problem with the abuse of legal drugs throughout his adult years. A report from clinical psychologist Mr Bernard Healey was tendered before his Honour. Intellectual testing revealed that the appellant had 'just below average capacity'. There was evidence before his Honour of a number of programs undertaken in prison whilst awaiting trial together with reports of negative tests to random prison drug tests.

33 It is submitted on behalf of Tame Kohunui on appeal that the sentencing judge should have imposed a lesser sentence upon him as compared with the sentence imposed upon his brother. It is submitted that the appellant Tame Kohunui had admitted his offending when first interviewed, that he had a moderately severe head injury as a 14 year old, that he had been shot in the armed robbery and that his Honour concluded that he had better prospects for rehabilitation than his brother. His Honour gave consideration to the issue of parity in the following terms:

Your brother, John, has pleaded guilty to the same offence as you. He is older than you. Your criminal history is relevantly worse than his. Your prospects for rehabilitation appear better. The conduct of the two of you in the armed robberies is indistinguishable. Like you, his adolescent and adult life has been dominated by drug abuse. Your situation is to some extent explained by head injury which you suffered when you were 14. In all the circumstances it seems to me that the two of you should be treated the same in relation to these offences.

In my view the approach taken by his Honour in relation to the issue of parity was correct and I see no reason why differing sentences should be imposed upon either appellant.

34 In consideration of the sentences to be imposed upon each appellant the following matters are of particular relevance.

• Each of the appellants assisted the authorities by making statements and undertaking to give evidence in the trial of Wally White.

• Each of the appellants gave evidence in accordance with their undertakings on two occasions, the first and the second trial of White.

• Each of the appellants, having declined at first to provide assistance to the authorities as to the identity of Herbert, nevertheless, and after Herbert had agreed to give evidence against White, did give evidence as to the identity of Herbert in the re-trial of White.

• In sentencing Herbert the trial judge accepted that the evidence given by Herbert in the re-trial of White 'plugged the hole' in the Crown case. His Honour considered that the assistance given by Herbert entitled him 'to a very considerable' discount.

• His Honour also accepted a submission made on behalf of Herbert's counsel that Herbert's role in the first armed robbery was 'perhaps a lesser one than the two Kohunui brothers' in that the armed robbery was not Herbert's idea, he having acted as a guard, and the weapons which were taken by the three offenders having been provided by the Kohunuis.

35 In my view the assistance provided to the authorities by each of the appellants was of considerable significance. It brought to justice the person who was principally responsible for the death of Jason Gully. As the sentencing judge recognised, the co-operation is likely to result in each of them being held in protective custody for the term of their sentences, with the result that imprisonment is likely to be more burdensome than would otherwise be the case. That said, and as the sentencing judge clearly recognised, the manslaughter of Jason Gully was a very serious example of manslaughter by unlawful and dangerous act. In my view, had it not been for the matters referred to above, a sentence in each case in the range of 12 to 14 years' imprisonment would have been appropriate. Likewise each of the armed robberies committed by the appellants were brazen and serious examples of that offence, and had it not been for the above matters a sentence in the range of seven to ten years' imprisonment would have been entirely justified.[5]

36 Taking into account the above matters, the appropriate sentences to be imposed on re-sentencing are in my opinion as follows:

37 Whilst it is true that the armed robbery the subject of count 2 was part of the same episode of criminal offending as was the manslaughter, the subject of count 1, a degree of cumulation is appropriate to reflect the serious additional criminality involved in the two crimes notwithstanding that they were part of the same episode. I would direct that two years of the term of imprisonment imposed upon count 2 and two years of the term of imprisonment imposed upon count 3 be served cumulatively upon the term of imprisonment imposed on count 1, and upon each other, making a total effective sentence of 11 years' imprisonment. I would direct that each appellant not be eligible for parole until he has served a term of eight years' imprisonment.

[2] (Unreported, Court of Appeal Victoria, 13 November 1995).

[3] (Unreported, Court of Appeal, 18 March 1998).

[4] R v Golding (1980) 24 SASR 161; R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717.

[5] It should be observed that on the count of armed robbery of the Freccia Azzura Club White was sentenced to seven years' imprisonment in circumstances where his Honour was constrained by issues of totality.

Poisons and Controlled Substances Act 1981

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