R v Taufahema

LEGISLATION CITED: Crimes Act 1900 Firearms Act 1996

CASES CITED : Pearce v The Queen (1994) 194 CLR 610

PARTIES: Regina - Crown Manaloa Taufahema - Respondent

COUNSEL: JA Girdham - Crown Ms C Nash/Mr D Kang - Appellant

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Crown S O'Connor, Solicitor for the Legal Aid Commission of NSW - Respondent

LOWER COURT JUDICIAL OFFICER: Judge Finnane RFD QC

IN THE COURT OF CRIMINAL APPEAL 2009/9129

McCLELLAN CJ at CL KIRBY J HOEBEN J

Thursday 28 October 2010 REGINA v Manaloa TAUFAHEMA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 KIRBY J: I agree with Hoeben J. 3 HOEBEN J: Offences and Sentence On 17 July 2009 the respondent pleaded guilty to three offences of armed robbery with a dangerous weapon in contravention of s 97(2) of the Crimes Act 1900 each attracting a maximum penalty of imprisonment for 25 years and one offence of possess pistol without a licence in contravention of s 7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years and the standard non-parole period is 3 years. Five matters on a Form 1 were taken into account in respect of count 1. 4 On 7 May 2010 the respondent came before his Honour Judge Finnane RFD QC for sentence. The sentences imposed by his Honour were:

Count 1 (robbery at Taverners Hill Hotel, Leichhardt) - imprisonment with a non-parole period of 4 years to date from 10 December 2007 and to expire on 9 December 2011 with a balance of term of 3 years to expire on 9 December 2014 (five matters on a Form 1 were taken into account).

Count 2 (robbery at National Australia Bank, Campsie) - imprisonment with a non-parole period of 4 years to date from 10 December 2008 and to expire on 9 December 2012 with a balance of term of 3 years to expire on 9 December 2015.

Count 3 (robbery at Bendigo Bank, Bexley) - imprisonment with a non-parole period of 4 years to date from 10 December 2008 and to expire on 9 December 2012 with a balance of term of 3 years to expire on 9 December 2015.

Count 4 (possess pistol without licence or permit) - imprisonment with a non-parole period of 2 years to date from 10 December 2011 and to expire on 9 December 2013 with a balance of term of 2 years to expire on 9 December 2015. 5 The effect of those sentences was imprisonment with a non-parole of 6 years to date from 10 December 2007 and to expire on 9 December 2013 with a balance of term of 2 years to expire on 9 December 2015. 6 The Crown appeals pursuant to s5D of the Criminal Appeal Act 1912 against those sentences. The Crown relies upon the following grounds of appeal:

Ground 1: The sentences imposed failed to reflect the objective seriousness of the respondent's crimes.

Ground 2: His Honour erred in failing to impose sentences in accordance with the principles enunciated in Pearce v The Queen (1994) 194 CLR 610.

Ground 3: His Honour erred in backdating the sentences to commence on the date the offender was charged with the subject offences.

Ground 4: His Honour erred by failing to appropriately take into account the offences on the Form 1 document when imposing the sentence in respect of count 1.

Ground 5: His Honour erred in failing to determine where count 4 fell in the range of seriousness for offences of that kind.

Ground 6: Error in the imposition of sentences which are manifestly inadequate.

Factual Background Count 1 - Robbery whilst armed with a dangerous weapon on 10 September 2007 at Taverners Hill Hotel, Leichhardt (the second matter on the Form 1 "carried in a conveyance without consent" occurred in the course of committing this offence). 7 At about 9.50am on 10 September 2007 the respondent, with two other males, got out of a stolen BMW vehicle and entered the hotel through the rear beer-garden. The faces of the three offenders were disguised with balaclavas. One of the offenders was armed with a sawn-off shotgun, another with a knife and a third with a crowbar. 8 The three offenders confronted a tenant of the hotel pointing the shotgun at him. They escorted the tenant into the main bar area where they confronted two staff members, pointing the shotgun at them. One staff member was told to lie on the floor. The offender with the shotgun then pointed it at the other staff member who was the manager of the hotel and demanded to be taken to the safe. 9 When the safe was unable to be opened because it was on time delay, the offender with the knife threatened the manager. At the request of this offender the manager opened a drawer and money was removed from it. When the time at which the safe could be opened arrived, the manager did so and the offender with the knife removed its contents ($38,862.25). The manager was ordered to lie on the floor with the other staff member while the offenders left the premises.

Count 2 - Robbery whilst armed with a dangerous weapon on 10 September 2007 at National Australia Bank, Campsie. 10 Approximately an hour later on the same day, the stolen BMW stopped outside the bank. The same three offenders, including the respondent, exited the vehicle and entered the branch. One male was armed with a shotgun, another with a mallet and the third with a crowbar. 11 At that time there were a number of customers in the bank. The offender with the shotgun pointed it at the customers in the service area. The offender with the crowbar climbed onto the service counter and entered the staff area by removing tiles in the false ceiling directly above where the teller screen meets the ceiling and climbing through the opening. The other two offenders demanded of a male employee that the door to the staff area be opened. When this was refused, the male employee was pushed towards the door. The offender with the shotgun kicked the male employee in the ribs. The male employee, who had dropped to the ground, pleaded for mercy. 12 The offender, who had entered the staff area through the ceiling, allowed the other two offenders into the staff area. The three offenders commenced opening cash drawers and removing money, which they placed in a bag. The offender with the shotgun stood about a metre and a half away from a female employee and screamed at her "Where's the fucking money?" The female staff member indicated with her hands that she had no money. When the alarm went off, the offenders ran out of the bank through the front doors taking $27,216. As the offenders were driving away, a dye bomb packed with the cash activated disbursing a powdery red substance.

First matter on Form 1: Attempted armed robbery with a dangerous weapon on 2 October 2007 - Bank of Queensland, Flemington.

Third matter on Form 1: Carried in conveyance without consent of owner on 2 October 2007. 13 At about 10.35am on 2 October 2007 the respondent, accompanied by two other males, entered the Bank of Queensland at the Flemington Markets. Two of the males were armed with pistols and one was armed with a small sledgehammer. The offenders with pistols pointed them in the direction of the service counter with one offender shouting "Hold up". The offender with a black pistol pointed it at an employee sitting behind the service counter. Another offender jumped onto the service counter and unsuccessfully attempted to squeeze through the screens separating customers and staff. Two of the offenders unsuccessfully attempted to use the sledgehammer and a small tomahawk produced from a carry bag to smash the security door separating the customer area from the banking chamber. The offenders ultimately ran from the bank without having obtained any money. The offenders escaped in a stolen grey Volkswagen.

Count 3 - Robbery whilst armed with a dangerous weapon on 2 October 2007 - Bendigo Bank, Bexley. 14 At about 11.04am on the same day, 2 October 2007, the same three males including the respondent, as had just attempted to rob the Bank of Queensland, entered the Bendigo Bank at Bexley with the same weapons. As the manager saw the three offenders enter the bank, he activated the hold-up screens which locked into place. 15 The respondent then jumped onto the service counter and with the assistance of a second offender boosting him up, was able to punch and crowbar his way through the false ceiling. The respondent then enabled the other two offenders holding bags to access the teller area. One of those offenders held a silver pistol at head height. The offender armed with the crowbar asked for the "fucking money" and tried unsuccessfully to jemmy open the drawer of one of the tellers. He demanded that the tellers open the drawers with keys. 16 An offender with a pistol paced the banking chamber pointing his pistol at employees as he walked past them. At this point the employees were underneath the counter. Keys to the safe were demanded and produced by a female employee. The offender with the pistol walked to the safe and another offender screamed, "Open the fucking safe". The female employee complied and cash totalling $129,053.85 was removed from the safe and placed in carry bags. The offenders escaped in the stolen grey Volkswagen.

(Fourth matter on Form 1: Possess ammunition Fifth matter on Form 1: Not keep firearm safe) 17 On 29 November 2007 the police executed a search warrant at a suite in the Comfort Inn at Burwood. Five males, including the respondent, were present. Inside a backpack which contained items apparently belonging to the respondent, police located a black semi-automatic .22 calibre pistol which contained a magazine holding six .22 calibre rounds of ammunition.

Remarks on Sentence 18 As the first step his Honour reviewed the facts surrounding the sentences. In relation to count 1 his Honour said: "That robbery in itself has to be said to be a robbery of a very bad type. All robberies are bad, but where firearms are produced and knives are produced and people are threatened it becomes worse. What they were after was a very significant sum of money and they got it. These people were not after small sums of money, not like the robbery of a 711 store by a couple of drug addicts looking for a few hundred dollars. Clearly there had to be some planning involved, planning sufficient to involve the stealing of a car days and days beforehand and the use of disguises." (ROS 4.7) 19 In relation to count 3 his Honour again noted that this robbery took some planning and that the offenders were aware of how to beat the protective screens by going through the ceiling. A car was stolen and weapons obtained as part of the plan. 20 In relation to count 4 his Honour said: "Possession of a pistol is regarded as a very serious offence in this State. The mere possession of it without a licence is enough to render a person liable to a heavy gaol sentence and a heavy standard non-parole period which I have already mentioned." (ROS 7.3) "This community takes the view that people should not possess pistols. We are quite unlike the United States of America in this regard. We take it very seriously. The only people who should possess such weapons are police officers, people who are licensed to have them for the purpose of their occupation and to some extent soldiers while on military service. Other persons should not have them. But to have them for the purpose of taking part in armed robberies is a very chilling matter, particularly when you take into account the fact that he has or he had in his possession ammunition. I think that anybody who is confronted by a man with a gun would feel frightened, probably for the rest of his or her life and if indeed he was aware that the gun had ammunition in it I think he would be doubly frightened." (ROS 12.9) 21 His Honour next examined the respondent's subjective case. The respondent was born in September 1988 and was aged 19 at the time of the offences. The respondent's first offence was one of aggravated robbery which occurred in 2003 when he was aged 16. The next offences of consequence occurred in March 2006 being assault with intent to rob in company and assault with intent to rob whilst armed with an offensive weapon. His Honour noted that the respondent had been treated leniently by the Children's Court in relation to those matters. What his Honour did not refer to but which emerges from the respondent's criminal antecedents is that at the time when the offences presently under consideration occurred, he was subject to two Control Orders imposed by the Children's Court on 20 March 2006. These two Control Orders were imposed in respect of the March 2006 assault offences. 22 His Honour had before him two reports from the Probation and Parole Service. These revealed that the respondent was fulfilling his reporting conditions and complying with directions until October 2007 when he started to miss appointments and failed a urine analysis test. The respondent explained that in August 2007 he began to use illicit drugs again and to associate with criminal friends so that by September 2007 he was using large amounts of heroin on a daily basis. 23 These reports showed that the respondent was born in Sydney to parents of Tongan descent. He was one of 11 siblings, 8 brothers and 3 sisters. One of his brothers was fatally wounded during an armed robbery in 2009 and two of his older brothers are currently serving lengthy sentences for serious offences. Another brother is on remand in Parklea and a sister is currently in the Dilwinnia Corrective Centre. 24 The reports showed that he performed appropriately in primary school but once he got to high school he fell in with a group described as "trouble-making friends" and started using heroin intravenously. Thereafter he was in regular trouble with the police. Nevertheless, he managed to obtain his school certificate. He was expelled from school for unsatisfactory behaviour and does not appear to have worked at any time. He told the Probation and Parole Officer that he had been an intravenous drug user from an early age and when he was arrested, his habit was costing him $1200 per day. He was also using cannabis, crystal methamphetamine (Ice) and Ecstasy. He was a compulsive gambler and lost a lot of money on poker machines. He said that between August and December 2007 drugs, gambling and other expenses were costing him $4,500 per day. 25 The respondent did not give evidence in the sentencing proceedings. A report from a psychologist was placed before his Honour. This confirmed the history recorded by the Probation and Parole Service. The psychologist assessed the respondent as an individual of below average cognitive capacity. She diagnosed a personality disorder, complicated by opioid dependence. She said that his personality disorder led to antisocial behaviour. She said that his compulsive and addictive behaviour, such as substance dependence and gambling, were closely related to his personality disorder. A comprehensive rehabilitation program was recommended. 26 Other than the fact that he had pleaded guilty, his Honour was not able to find any evidence of remorse and contrition. Similarly, his Honour rejected a submission that he should make a finding of special circumstances in favour of the respondent. His Honour was, however, prepared to have regard to the respondent's youth and also had regard to his early plea of guilty. 27 His Honour considered the guideline judgment in R v Henry (1999) 46 NSWLR 346 and concluded that the circumstances of these offences were more serious than those considered in Henry. In particular, his Honour referred to the substantial amounts which were taken, the considerable threats of violence and actual violence and the significant extent of the planning involved. In conclusion his Honour said: "If deterrence means anything then I must have regard to specific deterrence and general deterrence. Offences such as this require significant sentences. Because he is young I am not going to give him a sentence that I might give if he was a lot older, but the sentence itself, the overall sentence will be significant." (ROS 12.3) 28 His Honour did not think that there was much hope of rehabilitation. Although the respondent had been a heroin addict for some time, he had not shown "terribly much interest" in overcoming his addiction. His Honour once again referred to the seriousness of the offences and the fact that in relation to count 4, there was a standard non-parole period to be considered. When passing the sentences previously referred to, his Honour backdated them to the date on which the plaintiff was charged. His Honour noted that there was a measure of leniency in the sentences and that was because of the respondent's youth.

Appeal Grounds 1, 2, 4 and 6: 29 It is convenient to deal with these grounds of appeal together since they raise substantially the same issues. In these grounds the Crown asserts error in that the sentences failed to reflect the objective seriousness of the offences, a failure to apply Pearce v The Queen (1994) 194 CLR 610, and a failure to take into account the offences on the Form 1 in relation to count 1. Ground 6 asserts error in passing a sentence which in total was manifestly inadequate. 30 I do not accept that the sentences imposed individually failed to reflect the objective seriousness of the offences. It is clear from his Honour's remarks on sentence that he not only took into account the guideline judgment in Henry but that he applied it. His Honour was conscious of the fact that the criminality in counts 1 - 3 exceeded that described in Henry and the individual sentences reflect that. 31 It is true that his Honour appears to have overlooked the fact that the respondent was subject to Control Orders made by the Children's Court at the time when these offences were committed. Whilst this is clearly an aggravating factor, it is not one which would necessarily require this Court to intervene and re-sentence. In fairness to his Honour, this was not a matter which was brought to his attention by the Crown during the sentencing proceedings. 32 It also needs to be kept in mind that the sentences ultimately passed by his Honour were arrived at not only by a consideration of the objective seriousness of the offences and matters such as general and specific deterrence, but also as a result of a consideration of the respondent's strong subjective case with particular reference to his unfortunate upbringing, his early addiction to heroin and his age, both at the time when the offences were committed and at the time of sentencing. 33 I am not persuaded that the Crown has made out its first ground of appeal. 34 Pearce is authority for the proposition that a sentencing judge should fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence in the context of appropriately taking into account the principles of proportionality and totality. The Crown submits that it is apparent from his Honour's remarks on sentence, and from the fact that the sentences in respect of counts 2 and 3 were fully concurrent, that his Honour failed to properly apply Pearce. 35 The Crown specifically refers to ROS 13.6 where his Honour said: "With all these things being said I have decided to impose sentences which will see him in custody for at least 6 years." 36 The Crown submits that his Honour then sought to tailor the sentences in respect of each offence to bring about that result. In particular, the Crown submits, his Honour impermissibly made the sentences for counts 2 and 3 concurrent. 37 In R v Cahyahi (2000) 168 A Crim R 41 at [27] Howie J (with whom Adams and Price JJ agreed) said: "27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 38 In R v Nguyen [2007] NSWCCA 14 at [12] Howie J (with whom Sully and Price JJ) agreed, referring to Cahyahi said: "It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences for offences committed on the same day, or in the same criminal enterprise, should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence …" 39 It is clear when one looks at counts 2 and 3 that the offences were quite separate and each involved significant criminality. They were offences which involved not only a threat of violence but actual violence and each individually was arguably more serious than the offence in count 1. Applying the principle of totality, it is clear that his Honour failed to structure the sentences in respect of counts 2 and 3 to appropriately reflect the criminality involved. 40 The application of the principle of totality in such circumstances was explained by this Court in R v MMK [2006] NSWCCA 272 at [13] where Spigelman CJ, Whealy and Howie JJ said: "13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality." 41 I am satisfied that the Crown has made out its second ground of appeal. 42 The Crown submits that although his Honour referred to the five matters on the Form 1 in respect of count 1, it was not apparent that he gave any effect to this when formulating his sentence in respect of count 1. This was particularly so when included on the Form 1 was the attempted armed robbery with a dangerous weapon of the Bank of Queensland at Flemington. The Crown relied upon the guideline judgment in Re: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146. 43 It is true that in the Attorney-General's Application under s 37 at [42] Spigelman CJ said that in such situations greater weight is given to personal deterrence and to "the community's entitlement to extract retribution for serious offences ... for which no punishment has in fact been imposed" when passing sentence in respect of offences to which a Form 1 is attached. The Chief Justice pointed out, however, that this principle can be qualified by considerations relating to the maximum penalty for the primary offence and considerations relating to totality. 44 Of the three robberies to which counts 1 - 3 relate, the least level of criminality probably attaches to count 1. The fact that his Honour imposed the same sentence in respect of that count as he did for counts 2 and 3 may indicate that his Honour took into account the matters on the Form 1 to some extent. If his Honour did have regard to the Form 1 matters when sentencing for count 1, he should have said so and indicated their effect. In view of the seriousness of the matters on the Form 1 and his Honour's failure to make any reference to it when sentencing in respect of count 1, I am not persuaded that his Honour did in fact take the Form 1 into account when passing that sentence. Accordingly, the Crown has made out ground of appeal 4. 45 Ground of appeal 6 does no more than pick up the matters to which reference has already been made and there is no need to consider it further. 46 In ground of appeal 3, the Crown complains that his Honour was unduly lenient in backdating the sentences to commence on the date when the respondent was charged. The Crown submits that the effect of that decision was to subsume the non-parole periods imposed in respect of the respondent's previous convictions for assault with intent to rob, which had been imposed by the Children's Court. 47 I do not agree. His Honour was well aware that his decision to backdate the commencement of the sentences did involve leniency. He referred specifically to this and to the respondent's youth. This was an appropriate matter for his Honour to take into account and involved an exercise by his Honour of the discretion referred to in Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 with which this Court should not interfere, unless error has otherwise been identified. 48 The Crown has not made out this ground of appeal. 49 In ground 5 the Crown submits that his Honour erred in his approach to sentencing for count 4. That was an offence to which a standard non-parole period of 3 years applied. The Crown submits that in sentencing for this offence his Honour should have determined where that offence fell in the range of objective seriousness for offences of that kind before passing sentence. 50 The Crown's complaint is justified. This Court has said on a number of occasions, starting with R v Way [2004] NSWCCA 131, (2004) 16 NSWLR 168, that in relation to offences where a standard non-parole period applies and that standard non-parole period is varied, the reasons for the variation must be recorded expressly in the Remarks on Sentence and each factor taken into account must be specifically identified. Nevertheless, as s 54B of the Crimes (Sentencing Procedure) Act 1999 makes clear, the failure of a court to comply with that procedure does not necessarily invalidate the sentence. 51 In this case his Honour was aware that a standard non-parole period applied to this offence. In his Remarks on Sentence his Honour made it clear that he regarded this offence as being a serious example of offences of this kind. That having been said, his Honour was entitled to have regard to the fact that a plea of guilty had been entered and that this offence was one of a number of offences for which sentences were to be passed so that considerations of totality had to apply. I am not persuaded that his Honour erred in passing a sentence with a non-parole period which was less than the standard non-parole period prescribed. 52 It is, however, most unfortunate that, despite the large number of decisions of this Court stating unequivocally that sentencing courts should follow a certain process and expose their reasoning when dealing with offences having a standard non-parole period, his Honour has so comprehensively failed to do so.

Conclusion 53 For the above reasons, it is clear that his Honour's sentencing discretion miscarried in a number of ways. The major problem relates to the structure of the sentences and his Honour's failure to appropriately apply the principle of totality. It follows that I do not propose to interfere with the individual sentences, but the extent of their concurrency and cumulation does require change. The effect of the sentences which I propose is imprisonment with a non-parole period of 7 � years with a balance of term of 3 years. 54 The orders which I propose are:

(1) The Crown appeal is allowed. (2) The sentence in respect of count 4 is quashed and in lieu thereof the respondent is sentenced to imprisonment with a non-parole period of 2 years to date from 10 December 2007 and to expire on 9 December 2009 with a balance of term of 2 years to expire on 9 December 2011.

(3) The sentence in respect of count 1 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 December 2008 and to expire on 9 December 2012 with a balance of term of 3 years to expire on 9 December 2015.

(4) The sentence in respect of count 2 is quashed and in lieu thereof the respondent is sentenced to imprisonment with a non-parole period of 4 years to date from 10 December 2009 and to expire on 9 December 2013 with a balance of term of 3 years to expire on 9 December 2016.

(5) The sentence in respect of count 3 is quashed and in lieu thereof the respondent is sentenced to imprisonment with a non-parole period of 4 years to date from 10 June 2011 and to expire on 9 June 2015 with a balance of term of 3 years to expire on 9 June 2018. **********

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