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[2011] NSWCCA 288
Court of Criminal Appeal (NSW)
2011-11-11
Basten JA, Adams J, Johnson J, Ms J, Mr J
Original judgment source is linked above.
CCA 193 R v Youkhana [2004] NSWCCA 412 Regina v Ancuta [2005] NSWCCA 275 Texts Cited: Australian Law Reform Commission, Sentencing of Federal Offenders, Report No 15 Interim (AGPS, 1980), par 29 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) - Appellant Tevi Koloamatangi - Respondent Representation: Counsel:
Ms J A Girdham - Appellant Mr J S Stratton SC - Respondent Solicitors:
S Kavanagh (Solicitor for Public Prosecutions) - Appellant Peter Katsoolis Lawyers - Respondent File Number(s): 2009/46512; 2009/62509 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-05-23 00:00:00 Before: Sweeney DCJ File Number(s): 2009/046512; 2009/062509
HEADNOTE [This headnote is not to be read as part of the judgment] On 29 May 2009 the respondent was involved in a "home invasion" in Narwee. He pleaded guilty to two offences under the Crimes Act 1900 (NSW) which occurred on this day, the first being the offence of aggravated break, enter and steal and the second being robbery whilst armed with an offensive weapon. In the early hours of 31 May 2009, just two days after committing the previous offences, the respondent committed a number of crimes in the course of a robbery at the Lakes Hotel, Mascot, at which time he was apprehended by police. He was charged with five offences on that occasion, being robbery whilst armed with a dangerous weapon, two counts of detaining for advantage whilst in company, wounding with the intent to prevent apprehension and shooting at a person with the intent to murder. He pleaded guilty to four of the five offences and was later convicted by a jury in respect of the most serious offence, namely shoot at a person with intent to murder. On 23 May 2011 the respondent was sentenced by Sweeney DCJ in the District Court. The cumulative effect of the sentences imposed for the seven offences was a period of mandatory custody of 11 years, to date from the date of his apprehension on 31 May 2009, together with a further term of 4 years imprisonment. The respondent was eligible for parole on 30 May 2020. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed in respect of the aggravated break, enter and steal offence committed at Narwee and in respect of the sentence imposed for the offence of shoot at a person with the intent to murder. He further challenged the adequacy of the overall period of imprisonment on the basis that there was inadequate accumulation. The issues for determination on appeal were: (i) whether the trial judge erred in her approach to standard the non-parole periods (ii) whether the sentence imposed for the Narwee offence was manifestly inadequate (iii) whether the sentence imposed for the Lakes Hotel offence was manifestly inadequate (iv) whether the accumulation of the overall period of imprisonment was manifestly inadequate The Court held (per Basten JA, Adams and Johnson JJ agreeing) allowing the appeal and resentencing the respondent. In relation to (i)
Judgment 1BASTEN JA : Early in the afternoon of Friday, 29 May 2009, the respondent, in company with two other persons, was involved in what is colloquially known as a "home invasion" at Narwee, in the south of Sydney. He was later to be charged with two offences in relation to those events, being aggravated break, enter and steal, under s 112(2) of the Crimes Act 1900 (NSW) and robbery whilst armed with an offensive weapon, under s 97(1) of the Crimes Act . He was to plead guilty to those offences and came before Sweeney DCJ for sentencing, in the District Court at Sydney, on 23 May 2011. 2His apprehension resulted from a second criminal enterprise undertaken two days later, in the early hours of Sunday, 31 May 2009. On that occasion he committed a number of crimes in the course of a robbery at the Lakes Hotel, Mascot, at which time he was apprehended by police. He was charged with five offences on that occasion, being robbery whilst armed with a dangerous weapon (s 97(2)), two counts of detaining for advantage whilst in company (s 86(2)), wounding with intent to prevent apprehension (s 33(2)) and shooting at a person with intent to murder (s 29). He entered pleas of guilty with respect to four of those offences but went to trial, and was convicted by a jury, in respect of the most serious offence, namely shoot at a person with intent to murder. 3The cumulative effect of the sentences imposed on the respondent for the seven offences was a period of mandatory custody of 11 years, to date from the date of his apprehension on 31 May 2009, together with a further term of 4 years imprisonment. The total effective term of the sentence was thus 15 years. 4The Director of Public Prosecutions has appealed under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed in respect of the aggravated break, enter and steal offence committed at Narwee and in respect of the sentence imposed for the offence of shoot at a person with intent to murder, committed at the Lakes Hotel. He further challenges the inadequacy of the overall period of imprisonment on the basis that there was inadequate accumulation. 5In respect of the aggravated break, enter and steal, the trial judge imposed a non-parole period of 3 years with a further term of 2 years and 3 months imprisonment, giving a sentence period of 5 years and 3 months. In respect of the offence of shoot at with intent to murder, her Honour imposed a non-parole period of 6 years with a further term of 4 years. 6In respect of both offences, the Director has made good his challenge to the inadequacy of the sentences, and the Court should intervene to set aside the sentences and resentence the respondent. 7Each of the two specific sentences under challenge is subject to a standard non-parole period prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to the Narwee offence, the period specified is 5 years; in relation to the Lakes Hotel offence, the period is 10 years. (The maximum sentences prescribed by the Crimes Act are 20 years and 25 years respectively.) In dealing with offences for which a standard non-parole period is specified, the Court now has the benefit of the reasoning of the High Court in Muldrock v The Queen [2011] HCA 39, delivered on 5 October 2011 and thus not available to the sentencing judge. The immediate consequence of Muldrock is to remove one basis of error relied upon by the Director. This is not a case in which a judgment of the High Court, handed down after sentencing, may affect the course which should have been adopted at the sentencing, adversely to the offender. How this Court would deal with an appeal by the Director in such circumstances need not be considered. However, in order to resentence the offender, it will be necessary to adopt an approach in accordance with the principles identified in Muldrock . 8It is convenient to address the issues raised in the following order: (a) approach to standard non-parole periods; (b) adequacy of sentence for Narwee offence; (b) adequacy of sentence for Lakes Hotel offence; (c) structure of sentences imposed, and (d) resentencing the respondent.
Approach to standard non-parole periods 9The core statutory provisions with respect to standard non-parole periods are to be found in the Sentencing Procedure Act and read as follows: " 54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B Sentencing procedure (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) When determining the sentence for the offence ..., the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account." 10The deprivation of an individual's liberty in the interests of maintaining public order is an important aspect of public law. As with other public powers, the power to impose a sentence is constrained in respect of: (a) the conditions of engagement (including the jurisdiction of the court and the conviction of the offender); (b) the parameters of the power (including the range of available penalties and the determination of relevant, permissible and irrelevant considerations); (c) procedural constraints on the exercise of the power (including according the offender procedural fairness), and (d) the recording of the outcome in the individual case, with reasons. 11The conduct of a criminal trial, including the imposition of a sentence, is a paradigm of the operation of judicial power. In the not too distant past, legislation with respect to sentencing went little further than conferring jurisdiction on courts and identifying the range of available penalties: see, eg, The King v Ward [1918] HCA 36; 25 CLR 141. Sentencing principles, involving mandatory, permissible and impermissible considerations were routinely found within the general law rather than statute. The same was true in respect of sentencing procedure and in relation to reasons for sentencing. The proliferation of statute law in the last 25 years has been driven by a number of concerns, including the achievement of "greater certainty and consistency in the imposition of punishment": Australian Law Reform Commission, Sentencing of Federal Offenders , Report No 15 Interim (AGPS, 1980), par 29. Other purposes may also be identified in respect of particular legislation. 12What is often unclear, however, is the level at which a particular provision is intended to operate. These questions are not novel. Thus, the Sentencing Procedure Act states that "[w]hen sentencing an offender to imprisonment for an offence, a court is first required to set a non-parole period" and a balance of the term which "must not exceed one third of the non-parole period ..., unless the court decides that there are special circumstances for it being more": s 44(1) and (2), see also its predecessor, s 5(1) of the Sentencing Act 1989 (NSW). That language gave rise to a question as to whether the court was required to start by specifying the total sentence and then adjust the component parts, or whether it should first set the non-parole period and then fix the additional term. As explained in R v Hampton (1998) 44 NSWLR 729, by Spigelman CJ at 732B-C, in relation to the Sentencing Act 1989 : "The issue turns on whether s 5(1)(a) requires a sequential or two-step process, on the one hand, or whether the primary consideration is the total sentence on the other hand. In view of the affirmation in R v GDR that general sentencing principles guide all relevant steps in the process, it is not necessary to resolve the issue, which has a chicken and egg quality about it. The two approaches may go on simultaneously ...." 13In terms of the different elements identified at [10] above, these provisions were said to be directed, not to the constraints on the exercise of the power at (c), but the final act of imposing a sentence, at (d). In effect, the Court thus reaffirmed the importance of treating the sentencing exercise as a complex but unitary (or integrated) process requiring consideration of all relevant factors in quantifying the sentence to be imposed. It is an evaluative assessment "based on indeterminate standards and human judgment": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [72] (McHugh J). 14Legislation now defines the factors to be taken into account in sentencing, although in a way that restricts the list to those that are relevant and known in a particular case and without limiting those which might be relevant under the general law: Sentencing Procedure Act , s 21A. The legislation was, however, understandably reticent about how such factors might operate. Although stating that the Court "is" to take the identified matters into account - s 21A(1) - it also states that "[t]he fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence": s 21A(5). That the factors are to be taken into account in determining "the appropriate sentence" is an indication that they may be taken into account in different ways and for different purposes. 15The introduction, in 2002, of standard non-parole periods in relation to some offences raised a question as to the extent to which the principles underpinning s 21A were being varied: Sentencing Procedure Act, Part 4, Div 1A. There was no doubt that, as this Court held in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [50] affirmed by the High Court in Muldrock at [27], there were now two legislative guideposts for some offences, namely the maximum sentence and the standard non-parole period. In Way , the Court went further, noting that s 54B(2) was "framed in mandatory terms" so that, absent identification of reasons for ordering otherwise, it identified the period to be prescribed. Because the power of engagement was identified by reference to the "objective seriousness" of the offence, the effect of a mandatory provision would either be to devalue the other considerations prescribed by s 21A, or to prescribe the adoption of a two-stage procedure or, arguably, both. To the extent that Way upheld those approaches, its conclusions were rejected in Muldrock , the High Court stating at [25]. "The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness." 16Their Honours also said at [28]: "Nothing in the amendments [introducing Div 1A] requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period." 17So understood, the standard non-parole period provisions operated at level (b), by identifying, where applicable, another factor (or guidepost) to be taken into account. They did not operate at level (c), by imposing a procedural constraint on the process. Other provisions operated at level (d) by requiring the Court to identify in its reasons the facts, matters and circumstances by which the non-parole period imposed varied from the standard non-parole period: s 54B(4); Muldrock at [29]. The Court emphasised that this exercise did not require the ascription of mathematical values to various elements, nor the need to "classify" the objective seriousness of the offending. Muldrock affirmed (at [26]) that the broad ranging and flexible inquiry envisaged by s 21A and confirmed in Markarian was not subjected to a procedural straitjacket in respect of particular offences by the introduction of Div 1A into Part 4. 18Perhaps because this Court in Way took the view that, where applicable and absent reason for departure, the standard non-parole period should be applied, it permitted a broad range of factors to be considered in determining the "objective seriousness" of the offence: at [84]-[86]. Muldrock weakens the link between the standard non-parole period and the sentence imposed in a particular case and limits the range of such factors: at [27]. 19What remains in doubt, however, is whether the sentencing court is required or permitted to classify, or prohibited from classifying, the particular offence by reference to a low, middle or high range of objective seriousness. The statements at [25] and [29] indicate that the sentencing judge is not required to undertake such an assessment or classification. The statement at [28] indicates that it would be wrong to adopt a two-stage approach which commenced with such an assessment and then sought reasons for departure. On the other hand, to treat the standard non-parole period as a guidepost requires that the phrase "the middle of the range of objective seriousness" must be given content: see [27]. Further, the Court recognised the need for a sentencing judge to maintain "awareness" of the standard non-parole period as an additional consideration bearing on the appropriate sentence: at [31]. That exercise must include reference to the statutory context for its consideration. Nor did the Court suggest that a conventional assessment of the objective offending, according to a scale of seriousness, was to be eschewed. The diminished role accorded the standard non-parole period is, in effect, a function of the fact that it involves an hypothetical offence, ascertained by reference to a limited range of considerations. In Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 at [90], I noted that, whilst s 54A refers to "the range" of objective seriousness: " The statutory language does not require the determination of a low range, a middle range and a high range of seriousness: it envisages a single range and an offence in the middle of the range. ... As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness." 20Further, I suggested at [88] in Carlton that while the standard non-parole period is said to "represent" the non-parole period for an offence in the middle of the range of objective seriousness, the term "represents" is a curious one: "Section 54A(2) does not say that the standard non-parole period is that which 'should be' set for an offence in the middle of the range of objective seriousness. That the legislature eschewed such language may reflect the fact that a non-parole period is not determined solely by reference to an assessment of the objective seriousness of the offence; the exercise also takes into account subjective factors specific to the offender, but not relevant to the seriousness of the offence." 21These comments do not appear to be inconsistent with the remarks in Muldrock . One consequence of Muldrock is that a sentencing judge will need to bear the standard non-parole period in mind as a marker, whether or not there are reasons why it should not be applied. One reason for non-application is a plea of guilty entitling the offender to a discount, although that is not a factor relevant to the objective seriousness of the offence, in the terms identified in Muldrock . More importantly, the standard non-parole period cannot have "determinative significance" - see Muldrock at [32] - nor even, as the Court also noted, much weight at all in circumstances such as those which arose in Muldrock itself.
Adequacy of sentence for Narwee offence 22At about 1pm on 29 May 2009, the respondent went with two other persons to the home of Ms W in Narwee, apparently in the belief that she had a supply of cocaine. Ms W had three daughters of whom two, aged 17 years and 3 years, were at home. (The third was at school.) One of the respondent's co-offenders, Jasmine Ahearn, tricked Ms W into unlocking the front door, at which the respondent pushed the door wide open with his shoulder, threatened her with a wrench which he was carrying and demanded to be given her "stash" of cocaine. The trial judge described what followed (Judgment, p 3): "Mr Koloamatangi pushed [Ms W] into the laundry, grabbed her by the back of the neck and held the wrench to her face. She cried and pleaded with him not to hurt her or her daughters. Mr Koloamatangi forced her to sit on the laundry floor. He continued to hold her by the neck, waved the wrench near her face, use intimidating words and demand her 'stash'. There was no cocaine in the house, although a small amount of cannabis was later stolen. Mr Koloamatangi searched through cupboards in the laundry. Ms Ahearn came in a few times and told him that the house did not look like a 'professional's', a reference I infer to a drug dealer. Mr Koloamatangi then searched the kitchen cupboards. He refused to let [Ms W] check on her younger child, who was crying. Mr Raad joined Mr Koloamatangi in the kitchen. Mr Koloamatangi picked up [Ms W's] purse and demanded her cash. She gave him $150. He again demanded her stash. Mr Raad took [Ms W's] purse from her, took out her key card and asked for her PIN. Mr Koloamatangi waved the wrench close to her face, and fearing he was going to hit her with it, [Ms W] told them her PIN. Mr Raad took her photo identity card and said if she called police they would come back. Mr Koloamatangi found some tiling grout in the laundry which he thought was cocaine, and when told it was not, yelled at [Ms W] to stay on the floor, not to move and not look at him. Mr Koloamatangi and Mr Raad searched the rest of the house. During the search, Ms Ahearn sent [Ms W's] elder daughter to check on her mother and tell her to cooperate. The daughter ... saw her mother sitting on the laundry floor with her head down and Mr Koloamatangi standing above her holding a wrench. ... The property stolen from the house included a computer monitor and hard drive, a gold watch, two working mobile phones and three old phones used as toys by the younger child, and four gold necklaces, as well as the $150 cash, key card and photo identity card taken from [Ms W]." 23The trial judge referred to a victim impact statement prepared by Ms W, in which she had said that the family had moved home because of her fear and that she had fitted her new home with a deal of security. Because of her fear of leaving home, she had lost her employment, had had counselling and was on medication for anxiety and depression. She said her youngest daughter had become clingy and her eldest daughter troubled. By that she explained that the daughter had become distant from her mother and had lost her enthusiasm and motivation. 24In assessing the objective seriousness of the offences at Narwee, the trial judge stated that the victim impact statement indicated that she and her children had "suffered the kind of trauma to be expected from these kinds of offences": Judgment, p 15. That statement could be read in any of three ways. First, it is possible to read the statement as dismissive of the harm identified. That approach is implausible, particularly given the legitimate purpose of such a statement, as next noted, in the context of sentencing. Secondly, it could be an affirmation that such consequences are to be taken into account as ones that could reasonably have been foreseen by the offender, in accordance with R v Wickham [2004] NSWCCA 193 at [25] (Howie J); Josefski v Regina [2010] NSWCCA 41 at [3]-[4] (James J). Thirdly, the statement could be so read, but implying not merely that it was relevant and was being taken into account, but also that it was not to be treated as an aggravating factor, under s 21A(2) of the Sentencing Procedure Act . Where the injury, emotional harm, loss or damage caused by an offence is substantial, it constitutes an "aggravating factor" to be taken into account in sentencing, pursuant to s 21A(2). However, as the last sentence of that provision requires, the Court is not to have "additional regard" to any such factor if it is "an element of the offence". It is the last sentence of the sub-section, in combination with the relevant factors, which was intended to be referred to by the Court in R v Way at [106]-[107]. 25Consistently with this principle, the Court has noted that it would be a misapplication of s 21A(2) to take account of characteristics of the offending which, even if not elements of the offence, are inherently part of such offending. They are likely to be reflected in the maximum penalty (and the standard non-parole period), by which the legislature has indicated the proper view to be taken of the seriousness of the offence. Whilst such characteristics may properly be noted in their particular context, to treat them as statutory "aggravating factors" is to risk double counting: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing); R v Solomon [2005] NSWCCA 158 at [15]-[20] (Howie J, Grove and Latham JJ agreeing); Regina v Ancuta [2005] NSWCCA 275 at [11]-[13] (Brownie AJA, Buddin and Latham JJ agreeing); Elyard v Regina [2006] NSWCCA 43; 45 MVR 402 at [11] and [14] (in my judgment) and [40] (Howie J). 26The scope and limits of this principle were most clearly stated by Howie J in Solomon . However, despite this established line of authority, the Director submitted that in Josefski , at [46]-[47] Howie J had in some way qualified his earlier statements of principle. However that is not so. His concern (by reference to otherwise unidentified authority), was that a misunderstanding of the principle that foreseeable harm did not necessarily constitute an aggravating factor meant that it should be ignored. His Honour described that as a "common misunderstanding of the decision of this Court in R v Youkhana ... and R v Solomon ": at [44]. Indeed, his Honour reaffirmed the principle explained with some care in Solomon . 27I would read the statement of Sweeney DCJ as acknowledging succinctly both that the harm was foreseeable and therefore relevant, but that it should not also be treated as an aggravating factor. That approach demonstrates no error. 28Next, her Honour noted that there was "an issue of parity" in sentencing the respondent, as his co-offender, Mr Raad, had already been sentenced on 30 April 2010 by Madgwick ADCJ. How that came about is obscure, as Mr Raad was also involved in the Lakes Hotel enterprise, which will be discussed further below. Judge Madgwick sentenced Mr Raad for offences of aggravated break, enter and steal whilst in company and robbery armed with an offensive weapon, to 4 years imprisonment on each count, each with a 2 year non-parole period, to date from 15 June 2009, being the day on which he surrendered to police. 29Ms Ahearn was sentenced by Sweeney DCJ on 15 July 2010. She was charged with one offence of break, enter and steal in circumstances of aggravation, namely being in company with the respondent and Mr Raad. Her role in the enterprise was less serious than that of the other offenders and her personal circumstances differed. She received a two year sentence with a non-parole period of 15 months to date from 9 June 2009. 30It was unfortunate, in the interests of equal treatment, that Mr Raad was not also sentenced by Sweeney DCJ: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at [33]-[46], [146] (Johnson J, Whealy JA and Hidden J agreeing); Ng v R [2011] NSWCCA 227 at [77]-[83] (Bathurst CJ, James and Johnson JJ) . In sentencing him, Judge Madgwick ADCJ remarked that the evidence before him gave the impression that "there is much more to his personal history that is not being revealed": Judgment, 30 April 2010, p 3. In sentencing Mr Raad for his role in the Lakes Hotel offence, Judge Sweeney stated: "He said he committed the Narwee offences because of a bad drug habit, having escalated from using cannabis to using 'ice'. He also had a gambling habit on poker machines." 31Both accepted that the leader of the enterprise was Mr Koloamatangi. Sweeney DCJ also noted Mr Raad's "limited" criminal history before May 2009 and that his drug problem "did not seem too entrenched" which, combined with family support, led her to a similar conclusion in relation to his potential for rehabilitation. 32In assessing the objective seriousness of the offences, her Honour took into account the following factors (Judgment, pp 15-16): (a) the offences occurred in the presence of the two children; (b) the offenders stayed in the home for some time, despite being told there was no cocaine there; (c) the use of the wrench as a weapon to threaten and subdue Ms W (noting it was an element of the robbery charge); (d) the robbery took place in company, which was not an element of the offence pleaded but was relevant to the coercion placed on Ms W; (e) the trauma experienced by Ms W and the children; (f) the respondent was the leader of the enterprise. 33The charging of two closely related offences, in circumstances which may involve aggravating factors in respect of one offence, which are elements of another, can cause difficulty in respect of sentencing. Such circumstances invite consideration of the power to impose an aggregate sentence, where available, pursuant to s 53A of the Sentencing Procedure Act . That power was not available in this case, pleas of guilty entered before 14 March 2011 (and not withdrawn) being involved: Sentencing Procedure Act , Sch 2, cl 62 and R v AB (No 2) [2011] NSWCCA 256 at [14]-[15] (Johnson J, Bathurst CJ and Hoeben J agreeing). The course adopted by her Honour was substantially to the same effect, identical sentences being imposed for each offence, to be served entirely concurrently. One consequence of that approach may have been to diminish the overall sentence by attributing some factors to one rather than the other, thus avoid double counting, but with the result that, given total concurrency, the sentences imposed did not reflect the seriousness of the offending. It is necessary to assess the approach taken to both offences. 34The trial judge assessed the objective seriousness of the aggravated break, enter and steal as "just in the mid range of seriousness for offences of this kind". The Director took issue with that assessment. He submitted that the sentencing judge failed to give proper weight to the following matters: first, that the respondent knew from the outset that the house was occupied; secondly, that corporal violence was used; thirdly, that the victim was deprived of her liberty and fourthly, that there were two children present. Further, her Honour said that the property taken "was not large in quantity" and that most of it was recovered. However, the property was that which might have been readily exchanged for cash, was not insignificant to its owner and included a key card for which the PIN was extracted from the owner under duress. The fact that the property was largely recovered did not diminish the objective seriousness of the offending. The offender's circumstances did not permit leniency, although they provided some explanation for his descent into criminal activity, through drug use. 35The primary judge assessed the robbery as "approximately equivalent to the characteristic robbery considered in the Henry guideline judgment, although there are differences, such as the weapon being a wrench, not a knife, Mr Koloamatangi not being a young offender with little criminal history and that the offence was committed in [Ms W's] home": Judgment, p 16. 36That assessment underestimated the seriousness of the robbery offence. In considering the range of sentencing appropriate for an offence under s 97(1) of the Crimes Act , the guideline judgment suggested a generally appropriate range of between four and five years: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [162]-[165] (Spigelman CJ). The sentence imposed fell within that range. Nevertheless, the factors relied upon by the Director warranted a sentence in excess of that range. However, no challenge is made to the sentence in respect of that offence. The complaint arises in respect of the offence of aggravated break, enter and steal, where the circumstance of aggravation relied upon in the charge was commission of the offence in company: Crimes Act , s 105A(1), circumstances of aggravation , (b). Although each offence bears the same maximum penalty and can attract the same circumstances of aggravation for the purposes of s 21A of the Sentencing Procedure Act , this offence carried a standard non-parole period of 5 years. Because "the standard non-parole period represents the non-parole for an offence in the middle of the range of objective seriousness" for such an offence, her Honour expressed an opinion according to that standard: Sentencing Procedure Act , s 54A(2). The appropriateness of that approach will be considered in the light of comments in Muldrock , discussed below. However, to assess the aggravated break, enter and steal as "just in the mid range of seriousness" for an offence of that kind was to fail to give appropriate weight to the various circumstances of aggravation, including not only those referred to by her Honour, but those noted by the Director. But for one factor, that would warrant intervention of this Court on the Director's appeal. The countervailing consideration is that, in written submissions handed up on sentence, the prosecution, under the heading "Accumulation and Totality" stated: "there is a parity issue on the home invasion offence of the 29 th such that Mr K should receive the same sentence": par 11 at p 7. 37The other person being sentenced was Mr Raad and it appeared that the stance taken by the prosecution was that the respondent should receive a non-parole period of two years in respect of "the home invasion charge", a submission which was imprecise as to which of the two charges in respect of Narwee was referred to (if it were not both). Counsel for the respondent referred to this concession in his submissions on sentence (Tcpt, 11/05/11, p 58(30)): "Lastly your Honour I suppose the most difficult part in this exercise for your Honour may well be in terms of the issue of totality and issues of accumulation. ... [T]he Crown in his written submissions has submitted that effectively you could give my client a sentence in respect of the first matter I suppose akin to what Mr Raad received. Now I don't know whether your Honour necessarily agree[s] with that proposition but perhaps one way of addressing that would be if there was no concurrency between the 29 May offence and then the offences of 31 May that they were made cumulative if your Honour was contemplating perhaps a sentence of the order that Mr Raad received." 38The prosecutor also referred to this issue briefly in reply, stating (Tcpt, p 63(20)): "... the reason that I argued parity was because his other offences are much more serious and I believe that the issue of totality would look at that so that is why I have suggested that there be a particular starting date. I agree that that's a matter for your Honour but that was the way I approached it." 39There is no doubt that the respondent's role in the Narwee offences was greater than that of each co-offender: so much was conceded by his counsel at Tcpt, p 50(5). That her Honour acted upon that basis is demonstrated by the fact that both his non-parole period and his overall sentence were longer by 12 months and 15 months respectively than those imposed on Mr Raad. So understood, there was an issue of proportionality, rather than parity. In this context, her Honour's reference to "parity" appears to have been reflected in the order with respect to accumulation, which required that the respondent serve 2 full years of the sentences for the Narwee offences, before the commencement of the sentences for the Lakes Hotel offences. 40A consideration of these submissions indicates that the "concession" was neither concise as to its import, nor was it treated by the parties, or by the trial judge, as in some way constraining the exercise of her discretion. In the circumstances it can be disregarded. 41The circumstances set out above demonstrate that the "home invasion" was an offence aptly described as being within the middle range of objective seriousness of aggravated break, enter and steal offences, depending on how broad a band is identified: see Carlton at [19] above. This was on any view an offence requiring a non-parole period in the order of 5 years, taking into account the respondent's personal circumstances. The trial judge approached the matter on the basis that a discount of 12.5% was appropriate for the plea of guilty. That approach was not challenged on appeal. The resultant non-parole period is, in round terms, 4 years and 4 months. Absent special circumstances, that would call for a further term of 17 months, giving a total sentence of 5 years and 9 months. For reasons which are explained below, the structure of the sentencing should not be varied to take account of the greater sentence for this offence. Accordingly, there is no basis for a finding of special circumstances and the sentence imposed should be that just identified.
Adequacy of sentence for Lakes Hotel offences 42Within hours of committing the Narwee offences, the respondent commenced preparation for the Lakes Hotel robbery. As explained by the sentencing judge (Judgment, p 5): "On the night of 29 May 2009, Mr Koloamatangi went into Mr Raad's unit and retrieved the gun which was later used in the robbery, while Mr Raad and Jasmine Ahearn acted as lookouts nearby, because the police were interested in Mr Raad and his home because of the earlier home invasion offences. Mr Koloamatangi took the gun and stored it in a garage at the home of the uncle, Silivesiteli Lopeti, who was employed in a security role at the Lakes Hotel. There, in the early hours of Saturday, 30 May, in discussion with Mr Lopeti, as he admitted in his evidence in the sentence hearing, Mr Koloamatangi made the plan to rob the Lakes Hotel." 43The Narwee offenders were traced because the eldest daughter had the presence of mind to note the number plate of Mr Raad's car as they were leaving. The offenders returned to Mr Raad's apartment in South Coogee where they left the stolen property. It appears they arrived before the police, but by the time the respondent left by taxi, the police were outside the unit in South Coogee and followed the taxi. The respondent was arrested and taken to Randwick Police Station later than night. He refused to be interviewed or photographed and was released without charge. On the same evening, the police searched Mr Raad's unit and found most of the stolen property. They also seized Mr Raad's motor vehicle: statement of facts, paragraphs 11-16. 44Later that night, the respondent and Mr Raad, with others, went to a hotel in Kings Cross. They left shortly after 2.30am and went via Rosebery to the Lakes Hotel at Mascot. On the way in the car, the respondent dressed in black and loaded Mr Raad's gun, dropping a bullet in the car: Judgment, p 5. 45The hotel closed around 4am, but staff stayed until approximately 5.20am, at which stage the respondent was waiting outside and Mr Raad was nearby in the car. When the manager, Damien Robinson and the supervisor, Matthew Edmonds, were leaving, with the respondent's uncle, Mr Lopeti, the respondent approached them holding the gun and forced them back into the hotel. He did not, however, see the licensee, Diane Moran, who was able to alert police. Her Honour's account of the events of the early morning continued (Judgment, pp 6-10): "Mr Koloamatangi ushered Mr Edmonds and Mr Robinson with Mr Lopeti towards the office demanding the money. Because Mr Robinson had left the office keys inside the office in accordance with hotel procedure, Mr Edmonds and Mr Lopeti were required to break down [the] door to enter the office, Mr Robinson was required to open the safe in the office, and Mr Edmonds to put money in a bag, all while Mr Koloamatangi was brandishing a gun and demanding money. This was the robbery and the beginning of the detaining in company of Mr Robinson and Mr Edmonds. Mr Koloamatangi did not succeed in taking any money out of the hotel because of the events that followed. As it happened, the amount of money in float trays and in the safe in the office was not a significant amount. Police, including Sergeant de Lorenzo, arrived and entered the hotel. Because Sergeant de Lorenzo had been about to end his shift when he left Botany Police Station, he did not have his Glock pistol. He had a taser on his appointments belt. He went to the northern end of the bar near a door into an area where the office, a bottle shop and a small corridor were located. He discharged the taser at Mr Koloamatangi. He intended to disable Mr Koloamatangi with the electric shock from the taser, but although Mr Koloamatangi moved backwards, he was not disabled by the taser. During the trial, Sergeant Brown, a taser expert, said that although Mr Koloamatangi may have been startled by the taser, the taser did not affect Mr Koloamatangi because of the clothing he was wearing. The taser had a camera incorporated in it. The camera showed Mr Koloamatangi step into the camera's view, crouch slightly as if to steady himself, raise his gun to shoulder height, aim and fire it at Sergeant de Lorenzo. Mr Koloamatangi gave evidence in the sentence proceedings that he was affected by the taser, blinded, disoriented, unable to hear or think, for split seconds. Whether that was the initial effect, the taser camera footage shows that he had recovered sufficiently to deliberately take aim and fire at Sergeant de Lorenzo. His evidence to the contrary cannot be accepted. ... Fortunately the shot missed Sergeant de Lorenzo. Sergeant de Lorenzo retreated and obtained a Glock pistol from another police officer. He fired a shot from the southern end of the bar which hit Mr Koloamatangi in the head. Mr Koloamatangi, Mr Lopeti and the hotel employee hostages had moved into the bottle shop. There were police outside the bottle shop window and police inside the hotel were calling for Mr Koloamatangi to surrender. Mr Koloamatangi moved into the corridor near the office. Mathew Edmonds, one of the hostages, was lying on the bottle shop floor and he saw Mr Koloamatangi's gun with the barrel projecting out from the wall close to the floor as if the butt of the gun was touching the floor. It was the Crown case that Mr Koloamatangi was lying in wait for Sergeant de Lorenzo, shielded by the wall. ... ... The evidence of Sergeant de Lorenzo and Mathew Edmonds, the hostage witness, was that Sergeant de Lorenzo stepped into the doorway. He was thus visible to Mr Koloamatangi in the corridor. Sergeant de Lorenzo said Mr Koloamatangi fired his gun and he returned fire and I accept Sergeant de Lorenzo's evidence. The bullet fired by Mr Koloamatangi went through Sergeant de Lorenzo's shoulder and struck some objects in the bottle shop. Mathew Edmonds then took the opportunity to escape from the bottle shop. The jury found Mr Koloamatangi not guilty of the charge of wounding Sergeant de Lorenzo with intent to murder him. Consistent with that verdict and on the basis of the evidence available in the trial I do not find that Mr Koloamatangi lay in wait for Sergeant de Lorenzo, but I am satisfied that when he was lying in the corridor and Sergeant de Lorenzo stepped into the doorway and became visible to Mr Koloamatangi, Mr Koloamatangi shot at him, wounding him in the shoulder, to avoid him apprehending him, as he admitted by his plea. He had been told several times by police to surrender himself and had not done so. I accept that because he had already been shot, and because he later repeatedly told the police negotiator, that Mr Koloamatangi also feared for his own safety at the time he fired at and wounded Sergeant de Lorenzo to prevent him apprehending him. Sergeant de Lorenzo retreated. Mr Koloamatangi shut himself, Mr Robinson and Mr Lopeti in the office and held Mr Robinson at gunpoint for four hours. For part of that time Mr Koloamatangi and Mr Robinson spoke to a police negotiator by phone. Despite the police negotiator's assurances of his safety Mr Koloamatangi refused to surrender until about 10am. He was taken to hospital with gunshot wounds to his head, abdomen and leg. ..." 46These events gave rise to the following convictions and sentences: (1) Robbery armed with a dangerous weapon non-parole period - 5 years to date from 31 May 2011 with a balance of 2 years (2) Detain Mr Edmonds for advantage in company non-parole period - 3 years to date from 31 May 2012; balance of 2 years (3) Detain Mr Robinson for advantage in company non-parole period - 5 years to date from 31 May 2012, with a balance of 2 years (4) Wound with intent to prevent apprehension non-parole period - 6 years to date from 31 May 2013, with a balance of 2 years (5) Shoot at with intent to murder non-parole period - 6 years to date from 31 May 2014, with a balance of 4 years
47The Director's challenge related specifically to the sentence for the last offence, which resulted from a jury verdict on a plea of not guilty. 48The disparity between the sentence for detaining Mr Robinson and that for detaining Mr Edmonds appears to have been based on the fact that Mr Robinson was held for four hours at gunpoint, whilst Mr Edmonds escaped at an earlier point, although, as her Honour had noted in her reasons, the respondent "could not take credit for Mr Edmonds' escape and therefore relatively early release": Judgment, p 12. The other significant point in terms of a comparative assessment of the sentences flows from the guilty pleas entered in respect of each of the offences other than the shooting with intent to murder, for which pleas her Honour conferred a discount of 12.5%: Judgment, p 22. 49In assessing the objective seriousness of the offence for which the respondent went on trial, her Honour noted that "the factors to be considered include the gravity, skill and determination of the attempt, whether it was premeditated, the likelihood of death and any injuries inflicted": Judgment, p 13. She stated (pp 13-14): "Mr Koloamatangi fired one shot at Sergeant de Lorenzo. It was a deliberately aimed shot, premeditated for a short time beforehand, in that Mr Koloamatangi moved to face Sergeant de Lorenzo, steadied himself, aimed and fired. It was not premeditated for some time beforehand, but was premeditated in reaction to Sergeant de Lorenzo firing the taser. Mr Koloamatangi did not persist beyond the one shot, at least at that time in the course of this offence. The skill of his attempt was low, in that he missed Sergeant de Lorenzo despite firing at him at close range. The weapon used had the ability to kill, but fortunately Sergeant de Lorenzo did not suffer any injury from this offence. Sergeant de Lorenzo was a police officer in the course of his duty attempting to defuse a serious situation involving hostages and a gun. He was unarmed. I accept Mr Koloamatangi's motivation for committing the offence was to attempt to prevent his capture, but that does not derogate from the jury's verdict that he had the intent to kill Sergeant de Lorenzo. Balancing all those factors, I assess this offence by Mr Koloamatangi as slightly below the mid range of seriousness for offences of this kind. Therefore, the standard non-parole period need not be imposed but it remains a reference point or guidepost." 50The Director's challenge to this sentence involves two elements, namely: first, whether her Honour's assessment of the objective seriousness of the offence was open to her and, secondly, what should have been the correct approach to the standard non-parole period of 10 years, specified in respect of this offence. 51The respondent submitted that the Court must approach the characterisation of the degree of objective seriousness of an offence as a matter "classically within the role of the sentencing judge", with whose determination the Court should be "very slow" to interfere: Mulato v Regina [2006] NSWCCA 282 at [37] (Spigelman CJ, Simpson J agreeing "most emphatically" at [45] and [46]; Adams J to similar effect at [70]); Ayshow v R [2011] NSWCCA 240 at [38] (Johnson J, Bathurst CJ and James J agreeing); Leslie v Regina [2009] NSWCCA 203 at [43]-[44] (Hoeben J, McClellan CJ at CL and Howie J agreeing), following Spigelman CJ in Mulato . It may be that an appellate court's reluctance to interfere with such an assessment will be accentuated in circumstances where the trial judge, as in this case, has conducted a trial resulting in conviction and has thus had a more extensive opportunity to assess the nature of the offence than in circumstances where there has been a plea. Nevertheless, the appellate court retains a statutory responsibility under s 5D or s 6(3) of the Criminal Appeal Act to intervene in circumstances where, upon an application of the correct principles, error is established: R v KB [2011] NSWCCA 190 at [53] (Bathurst CJ, Buddin and Harrison JJ agreeing). 52The accepted principles are those identified in House v The King [1936] HCA 40; 55 CLR 499 at 505. As has been noted on other occasions, the principles in House refer to appellate interference with discretionary orders; nevertheless, similar principles are to be applied in relation to evaluative judgments such as that now in issue. 53Each of ss 27-30 of the Crimes Act identifies a number of categories of attempts to murder; each carries a liability to imprisonment for 25 years and a standard non-parole period of 10 years. The relevant mental element in s 29 is an intent to commit murder. Some circumstances may appear to bear higher moral responsibility than others, depending on the narrowness of the failure to kill or, viewed from the other point of view, the distance from achieving the intended effect. The moral turpitude of the offence may be reduced, as in the case of murder, by factors such as the mental state of the offender or the conduct of the victim, in each case falling short of providing a defence. What is less clear is why the gravity of the offence should be diminished by the incompetence of the offender. No doubt it is true that the offence was not premeditated in the sense that the intention to kill Sergeant de Lorenzo arose other than on the spur of the moment. However, that factor does not greatly diminish the moral quality of the act. The respondent had embarked on a criminal enterprise not merely by carrying a gun, but by carrying a gun which he had personally loaded on the way to the scene of the crime. It is possible that he did so with the intention of being able to fire a warning shot or wound any person providing resistance. Nevertheless, when the threat arose, he used the gun in a potentially lethal way, and with intent to kill, as the jury found. 54It is also true that the shot was fired after Sergeant de Lorenzo had attempted to disable the respondent. It may well be that the respondent did not know at that time whether Sergeant de Lorenzo had a gun, but that can hardly diminish the severity of the response. Any attempt or threat of serious violence offered to police officers in the execution of their duties must place the offence at the higher end of the spectrum. This was not an offence which warranted the maximum penalty, nor anything near it. However, a sentence, the full term of which, equated with the standard non-parole period, was a manifestly inadequate response to the seriousness of the conduct. 55The primary judge set out the personal circumstances of the offender with some care, identifying all the matters which could bear on factors in mitigation. It is not necessary to repeat the factors here. After setting out his personal history her Honour concluded (p 18): "No doubt his behaviour is connected with childhood experiences and the psychological consequences identified by Ms Hopkins [a psychologist], including aggression, impulsivity and anti-social personality traits, combined with his low intelligence." 56Her Honour continued: " Mr Koloamatangi gave evidence that he has always relapsed into drug use when he was released from custody. He and Emma Barber, his former partner, gave evidence that when he was last released from custody before these offences, in 2008, he tried to find a job and housing, saw some mental health professionals, and tried to stay away from his old drug using and drug dealing friends. However, he ended up back with his old associates using drugs, despite Ms Barber's attempts to support him. She remains supportive of him, but says he has to get help for his drug and emotional problems. ... Given Mr Koloamatangi's life history, his diagnosed psychological issues and entrenched long-term substance abuse, it is difficult to make any positive forecasts about his prospects of rehabilitation. ... Mr Koloamatangi expressed remorse for the victims of all his offences, including Sergeant de Lorenzo, although he maintained his innocence of shooting [at] him with intent to murder him. Mr Koloamatangi is not the most articulate person, but I accept he feels genuine remorse, except where it is qualified in respect of Sergeant de Lorenzo." 57Viewing the offence in isolation, and taking into account all the matters identified above, including the standard non-parole period and the personal circumstances of the offender noted by the trial judge but not repeated here, a 10 year non-parole period should have been imposed. As this was, appropriately, the last of the sentences to commence, in accordance with the structured periods of partly accumulated and partly concurrent sentences, and absent the imposition of an aggregate sentence, which was not available in this case, the balance of term will be the effective sentence remaining after completion of the last of the non-parole periods. Subject to the question of totality, there would be no reason to find special circumstances in relation to this offence. The additional term should therefore be 3 years and 4 months and the total sentence 13 years and 4 months.
Structure of sentences imposed 58According to the sentences as structured by the trial judge, the respondent served the first two years of his imprisonment solely in relation to the Narwee offences, each of which ran concurrently with the other. There is a question as to whether the two sentences should have been entirely concurrent. There is a further question as to whether the increase in the sentences proposed above should result in a higher degree of accumulation. 59The sentencing judge imposed sentences on Mr Raad with respect to his role in the Lakes Hotel enterprise entirely cumulative upon the two year non-parole period imposed on him by Judge Madgwick in respect of the Narwee offences. Given the greater role of the respondent in the Narwee offences, and the significantly greater sentence imposed upon him, it is inappropriate that each should serve the same period of time attributable solely to those offences. 60The third year of mandatory custody imposed by the trial judge was attributable to both the Narwee offences and the armed robbery at the Lakes Hotel. The remaining four years of the armed robbery non-parole period were entirely cumulative with the sentences for detain in company. 61Of the two detain in company sentences, each commenced on 31 May 2012, after three years served in respect of the other offences, the whole of the sentence in respect of Mr Edmonds was concurrent with the sentence with respect to Mr Robinson and all but one year of the sentence imposed in respect of detaining Mr Robinson was concurrent with the sentence imposed for wounding Sergeant de Lorenzo with intent to prevent lawful apprehension. 62Finally, the six year non-parole period imposed for the shoot at with intent to murder, was accumulated as to one year only on the sentence for wounding with intent to prevent lawful apprehension. 63Her Honour imposed sentences involving a total 31 years of mandatory custody, with an additional 16 years. Due to the degree of accumulation, the resultant period of imprisonment involved 11 years mandatory custody and four years by way of the additional term, giving a total sentence period of 15 years. The period of mandatory custody is therefore only one year more than the standard non-parole period for the final sentence, being the appropriate non-parole period for that offence. 64The increase in the two offences requires a proportionate increase in the total period of mandatory custody. To increase the total period of mandatory custody by the full amount of the increased non-parole periods for the two offences would risk the imposition of a crushing sentence. In some circumstances it is appropriate to adjust the individual sentences to achieve a proper outcome, having regard to the principle of totality. To take that course in the present case, which would require a finding of special circumstances for the purposes of s 44, would, on the other hand, tend to distort the sentences imposed for the individual offences, thus undermining in part the need to impose sentences properly reflective of the objective seriousness of the offences. The better course is to accept a higher degree of accumulation than might otherwise be warranted. 65In the result, the non-parole period for the offence of shooting at Sergeant de Lorenzo with intent to murder should commence on 31 May 2013 and terminate on 30 May 2023. The total period of mandatory detention will then constitute 14 years with a balance of term of 3 years and 4 months. While the balance constitutes one-third of the last non-parole period to expire, it is slightly less than one-quarter of the total period of mandatory custody. Nevertheless, it is not an insignificant period and is appropriate in all the circumstances.
Resentencing the respondent 66To give effect to the foregoing reasons, the Court should make the following orders: (1) Allow the appeal of the Director of Public Prosecutions and set aside the sentences imposed on 23 May 2011 by Sweeney DCJ in the District Court on the respondent, Tevi Koloamatangi, in respect of the following offences: (a) aggravated break, enter and steal, committed at Narwee on 29 May 2009, and (b) shoot at Sergeant de Lorenzo with intent to murder, committed at the Lakes Hotel, Mascot on 31 May 2009. (2) In lieu thereof, resentence the offender as follows: (a) in respect of aggravated break, enter and steal at Narwee, set a non-parole period of 4 years 4 months commencing on 31 May 2009 and expiring on 30 September 2013, with an additional period of 17 months, commencing on 1 October 2013 and expiring on 28 February 2015; (b) in respect of the offence of shoot at Sergeant de Lorenzo with intent to murder, committed at the Lakes Hotel, Mascot, on 31 May 2009, set a non-parole of 10 years, to commence on 31 May 2013 and terminating on 30 May 2023, with an additional period of 3 years and 4 months, commencing on 31 May 2023 and terminating on 30 September 2026. (3) The offender is first eligible for release from custody on 30 May 2023. 67ADAMS J : I agree with Basten JA. 68JOHNSON J : I agree with Basten JA.
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: 20 December 2011
R
Koloamatangi
[2005] HCA 25
(1998) 44 NSWLR 729
[1936] HCA 40