R v Mailau [2018] ACTSC 187

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - making a demand accompanied by a threat - objective seriousness - conditional liberty - weapon - criminal history - Pre-Sentence Report - specific deterrence - general deterrence - driving whilst suspended - imprisonment - disqualification from holding or obtaining a licence

SCC 301 of 2017; SCC 302 of 2017

1. Tomasi Mailau, you appear before me today for sentence with respect to one offence of making a demand accompanied by a threat pursuant to s 32(2)(a) of the Crimes Act 1900 (ACT).

2. The Statement of Facts states that, on 8 April 2017, you entered a café located in Griffith in the ACT. Once inside, you approached a table in the rear of the café where the victim was seated. You were not known to the victim. You spoke to the victim and told him that he owed a lot of people money, and specified this amount as being "50 grand". During the course of the discussion, you had one of your hands inside a small lightcoloured tartan satchel. You said to the victim, "I'll knee cap you now," before you moved your hand out of the satchel holding what appeared to be the butt of a firearm before asking, "Do you want me to get this out?" The victim agreed to pay the money.

3. You then walked out of the café, waited outside for some time before departing in your vehicle. I should note that, at the time, that you were a person whose licence had been suspended for failure to pay parking infringements.

4. The maximum penalty for the offence of making a demand accompanied by a threat, contrary to s 32(2)(a) of the Crimes Act 1900 (ACT) is 10 years' imprisonment, a fine or both.

5. In assessing the objective seriousness of this offence, I take into account the fact that you were on conditional liberty at that time. In that regard, I note that on 8 March 2017 at the Downing Centre in New South Wales, you were sentenced for offences of stalking and also using an offensive carriage service to threaten serious harm. On the first matter of stalking, you were placed on a bond to be of good behaviour for a period of 18 months. On the second offence, you were further placed on a recognizance to be of good behaviour for a period of 18 months. You were subject to those orders at the time that you committed the present offence.

6. I also take into account that you had with you what appeared to be a weapon. It is quite clear from the Statement of Facts that you intended that the victim would understand or apprehend that you had a weapon on you and that you were willing to use it in order to enforce your demands. It has been conceded by your counsel, and I think properly so based upon the Statement of Facts, that your victim was clearly targeted. I also take into account the fact that the offence occurred in a public place and was a brazen example of this type of offending.

7. I note that you have a criminal history, which includes convictions recorded for offences of violence, including common assault, attempted aggravated robbery and robbery from the person, together with those offences to which I referred earlier, which were dealt with at the Downing Centre in March 2017. I do note, however, that there appear to have been no offences of violence other than those that were dealt with in the Downing Centre last year subsequent to June 2008.

8. A PreSentence Report was prepared for the purposes of these proceedings. You are 42 years old and you have been, in the past, subject to several communitybased orders, including community service work. The records of ACT Corrective Services indicate that your compliance with community based orders has been inconsistent, with breach action being initiated in 2009. It is, however, notable that you completed the community service work condition of a good behaviour order in 2010.

9. I note that you reported that you were born in Tonga and remained there until the death of your father in 1981 at which point, the family migrated to Australia, following a short stay in New Zealand. You reported that you are one of 11 children and you stated that you maintain close relationships with most of your siblings. Several of your family members have been regular visitors to you during the period in custody. Your sister has verified that your family is very close and they are able to offer you considerable support in the community. This, of course, is a significant consideration when considering your prospects for rehabilitation.

10. You are currently single but you were previously married. That union resulted in five children, one of whom passed away as an infant. You have regular contact with your children when you are in the community. You stated an intention to return to live with your mother upon release from custody.

11. You were educated to year 9. Unfortunately, you were expelled from school during year 9, which marked the end of your formal education. You reported an employment history comprising predominantly parttime jobs in a number of industries. It is clear that you are capable of undertaking employment when you wish to do so. As your counsel conceded, there are no alcohol or drug, or mental health issues that are relevant to sentencing today.

12. I note from the PreSentence Report that you have been diagnosed with Type 2 Diabetes during your current period in custody. This does not appear to present any difficulties in terms of the imposition of a term of imprisonment.

13. The author of the PreSentence Report states that you took full responsibility for your offending and did not offer justifications or excuses for your behaviour. However, you appeared to have little insight or limited insight into the impact of your offending upon the victim and the community. It was the opinion of the author of the PreSentence Report that you are a single man with a long history of violent criminal offending. You have been assessed as at medium to low risk of general re-offending, with your criminal history the most significant criminogenic risk factor.

14. I take into account the fact that you have been assessed as suitable for community service work. However, in my opinion, the imposition of a good behaviour order, even as part of a suspended sentence involving community service, would not be adequate punishment with respect to the present offence.

15. The present offence can best be characterised as an attempt by you to obtain $50,000 by intimidation and by the threatened use of a weapon. In my opinion, nothing less than an immediate fulltime term of imprisonment will be adequate to meet the requirements of sentencing. In that regard, your criminal history speaks of a need for specific deterrence.

16. The seriousness of this offence and, in particular, the circumstances to which I earlier referred, suggest that general deterrence is also a very significant sentencing consideration. I note your plea of guilty with respect to the matter, albeit that it was not entered at the earliest opportunity. I do take into account that it was entered after negotiations with the Crown, which resulted in a more serious charge being withdrawn and the present charge being substituted.

17. My starting point with respect to this offence is one of three years' imprisonment. I will reduce that by six months in order to reflect your plea of guilty. You will be convicted and sentenced to 30 months' imprisonment commencing on 21 June 2017, being the date that you were taken into custody, and expiring on 20 December 2019.

18. With respect to the offence of driving whilst suspended, you will be convicted and sentenced to one month imprisonment commencing on 21 June 2017 and expiring on 20 July 2017. With regard to that matter, you will be disqualified from holding or obtaining a licence for a period of one month from today.

19. I will set a nonparole period of 18 months commencing on 21 June 2017 and expiring on 20 December 2018.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.