R v Tuifua

COUNSEL : Mr RA Herps for the Crown Ms G Bashir for the Applicant SOLICITORS : Mr SE O'Connor for the Director of Public Prosecutions Ross Hill & Associates for the Applicant CATCHWORDS : Criminal Law - application for leave to appeal against sentence - no question of principle LEGISLATION CITED : Crimes Act 1900, s94, s95, s97 Criminal Appeal Act 1912, s6 Astill (No. 2) 1992 64 A Crim R 289 Cocking [1999] NSWCCA 331 CASES CITED: Henry (1999) 46 NSWLR 346 Simpson (2001) 53 NSWLR 704 Thomson and Houlton (2000) 49 NSWLR 383 DECISION : Leave to appeal granted; Appeal dismissed.

• 12 -IN THE COURT OF CRIMINAL APPEAL 60013/02

Sperling J Buddin J

Tuesday, 15 October 2002 R v Tuifua Judgment 1 Sperling J: The applicant Ngaha Koula Tuifua applies for leave to appeal against sentences imposed on him by Kinchington DCJ, sitting in the District Court, Sydney, on 14 December 2001. By then, the applicant had pleaded guilty to both offences. 2 The first offence for which the applicant was sentenced was committed on 3 March 2000. It consisted of stealing from the person, contrary to s94 of the Crimes Act 1900. The maximum penalty for the offence is 14 years' imprisonment. In relation to that offence, his Honour took into account offences of assault occasioning actual bodily harm and malicious damage committed in the course of the same episode. 3 The second offence was armed robbery, contrary to s97 of the Crimes Act 1900, for which the maximum penalty is 20 years' imprisonment. That offence was committed about ten days later, on 14 March 2000. His Honour took into account a further offence of goods in custody. 4 The sentence imposed for the first offence was a fixed term of imprisonment of two and a half years, commencing on 5 October 2000. 5 The sentence imposed for the second offence was imprisonment for five years, commencing on 26 October 2001, with a non-parole period of three years, commencing on the same date and expiring on 25 October 2004. 6 The second sentence was partly concurrent with the first. It was dated to commence about one year after the commencement of the first sentence. The combined effect of the two sentences was an effective sentence of six years and 20 days with an effective non-parole period of four years and 20 days. 7 The applicant seeks leave to appeal in relation to the sentences. 8 The applicant was 18 years of age at the time of the offences. 9 The applicant had a substantial criminal record dating from 1997. This included four instances of break, enter and steal and one of steal from the person, for which, compendiously, a control order of six months was imposed in May 1999, with an additional term of six months expiring on 9 May 2000. 10 In August 1999, an identical control order was imposed for two instances of assault with intent to rob while armed with an offensive weapon. That control order was made concurrent with the control order to which I have referred. 11 Meanwhile, in July 1999, the applicant was dealt with for an offence of assault. In relation to that offence, he was required to enter into a recognizance to be of good behaviour for 18 months.

12 On 27 September 1999, the applicant was sentenced for breach of his recognisance to a fixed term of imprisonment of six weeks, commencing on that date. That also was concurrent with the previously-mentioned control order. 13 On the same date, 27 September 1999, the applicant was sentenced for the offence of possessing a prohibited drug to a fixed term of imprisonment of 14 days, commencing on that date. That sentence was, again, concurrent with the previously-mentioned control order. 14 Up to this point, considerable indulgence had been extended to the applicant by making the penalty for further offences concurrent. Unfortunately, he did not respond positively to that indulgence. The two offences which are the subject of the present appeal followed. They were committed while the applicant was on parole during the additional term of six months relating to the control order to which I have referred. The offences were also in breach of the applicant's recognizance to be of good behaviour, to which I have also referred. 15 Following the second of the two offences, that is, the offence committed on 14 March 2000, the applicant left Australia on the following day and travelled to the United States of America, where he lived with his sister. He returned to Australia voluntarily and was arrested on arrival at Sydney Airport on 5 October 2000. 16 On that date, a warrant for revocation of parole was executed and the applicant commenced to serve the balance of parole, being three months and three days, from 5 October 2000 to 7 January 2001. Bail was accordingly refused on 5 October 2000. 17 It may be noticed that the first sentence imposed by Kinchington DCJ was dated from 5 October 2000, notwithstanding that the applicant was serving out the balance of parole in relation to the control order from that date until 7 January 2001. The effective sentence imposed by Kinchington DCJ - consisting of the two sentences imposed by him - was thus, for practical purposes, reduced by approximately three months. 18 The applicant remained in custody, bail refused, until he was sentenced by Kinchington DCJ on 14 December 2001, a period in the order of 15 months. 19 On 28 May 2001, the applicant was committed for trial on a charge of aggravated robbery (contrary to s95 of the Crimes Act 1900) in relation to the episode which occurred on 3 March 2000. That charge was later reduced to the less serious charge of steal from the person. I will come to that. Charges in relation to the second offence were adjourned, presumably on the applicant's motion. 20 The delay between October 2000 and May 2001 was not inordinate, taking into account that the applicant required that one at least of the witnesses in relation to that offence be called for cross-examination at the committal hearing. 21 On 8 June 2001, the charge in relation to the first episode was listed for arraignment in the District Court but was adjourned, again presumably on the applicant's motion. 22 Following a further adjournment on 6 July, a trial date of 10 September 2001 was fixed for the charge of aggravated robbery then current in relation to the first episode. 23 Meanwhile, proceedings in the Local Court in relation to the second offence, that is, the offence in relation to the second episode, were adjourned a number of times, culminating in the applicant pleading guilty to that offence before the Local Court on 31 July 2001. 24 On 10 September 2001, the trial date for the charge in connection with the first episode, the applicant was indicted for the lesser offence of stealing from the person (contrary to s94 of the Crimes Act 1900). A plea of guilty was entered to that charge. 25 A sentencing hearing in relation to both offences was fixed for 26 October 2001. On that date, a pre-sentence report was ordered and the proceedings were adjourned to 30 November 2001. 26 Kinchington DCJ was not able to deal with the matter on that occasion due to ill health. The sentencing hearing was completed on 14 December 2001, and on that date the applicant was sentenced. 27 The applicant had not pleaded guilty in relation to any charge arising from the first episode until 10 September 2001, some 11 months after his arrest. However, that was after the initial charge, asserting a more serious offence, was reduced. The applicant should be taken to have pleaded guilty to that charge at the first available opportunity in these circumstances. 28 As to the charge relating to the second episode, the proceedings in the Local Court were adjourned on a number of occasions over a period of some nine months following the applicant's arrest in October 2000. Then, on 31 July 2001, the applicant pleaded guilty to the offence as initially charged. There was, accordingly, some delay in that plea but the plea was entered in the Local Court before committal for trial. In these circumstances, that should also be regarded as an early plea.

29 The sentencing judge's summary of the objective features of the two offences is not impugned on appeal. Each of the episodes appears to have been triggered by a personal grudge. In each instance, the episode degenerated from verbal abuse to violence and theft. 30 As to the first episode, occurring on 3 March 2000, the victim was seated in his motor vehicle, parked in a street at Newport. A group of young men, including the applicant, approached the vehicle. One of them opened the door of the vehicle. The applicant and another young man in the group commenced to abuse the victim over an alleged association with the girlfriend of a member of the group. The victim denied the association. He was then punched and kicked about the head and upper body by the applicant and another man in the group. The victim tried to drive away. The ignition keys were taken from the car. The victim was again assaulted by members of the group. A demand was made for the victim's wallet. The victim's mobile phone was taken. The victim received injuries to his face and right arm. His back and neck were sore and he was bleeding from the ear. The mobile phone was subsequently recovered by the police from a relative of the applicant. 31 The Form 1 offences relating to this charge went to the violence inflicted on the victim (assault occasioning actual bodily harm) and on the victim's motor vehicle (malicious damage). 32 As to the second offence, which occurred on 14 March 2000, the applicant and another man gained entry to a unit in Dee Why and confronted five males who were there. The applicant accused one of them of having sexual intercourse with his girlfriend and told them all that if they did not stay away from "the girls" the applicant would kill them all. The applicant threatened the victims with a dumbbell which he picked up. He entered the kitchen, picked up a knife and chased one of the victims into the bathroom with the knife. He then threatened another of the group with the knife, pressing it into the side of the victim's neck. He then assaulted another one of the group, demanding his wallet. Ultimately, three mobile phones and some $25 were taken before the applicant and his companion left the premises. As he left, the applicant held his hands in the shape of two guns and said that if the victims went to the police he would shoot them all. 33 The Form 1 offence relating to this charge might not have been connected with the same episode. It related to possession of a stolen credit card. 34 As I have mentioned, the applicant fled to the United States on the following day, returning voluntarily about seven months later to give himself up. 35 As to subjective considerations concerning the applicant personally, the sentencing judge recorded that the applicant had a disadvantaged background, having been brought up in a home with a violent and abusive father. His Honour observed that, as at March 2000, the applicant was well on the way to becoming a full-time criminal. However, it seemed that, while residing with his sister in the United States, the applicant had determined to change his ways. The applicant had not sought to minimise the serious nature of the charges that he faced. His Honour accepted that the applicant had made giant strides towards effecting his own rehabilitation and that he was now a different person from what he was at the time of the subject offences. 36 His Honour noted that the applicant was on parole for a similar offence when the subject offences were committed. (As I mentioned, the offences were also in breach of the applicant's recognisance.) 37 The grounds of appeal are specified as follows: 1. The learned sentencing judge failed to take into account or give sufficient weight to the applicant's plea of guilty. 2. The learned sentencing judge erred in giving insufficient weight to the rehabilitation of the applicant. 3. The learned sentencing judge erred in failing to take into account the delay between the date of the offence and the date of the sentencing proceedings. 4. The learned sentencing judge erred in the application of the principles of accumulation, concurrence and totality. 5. In all the circumstances, the sentences were manifestly excessive. 38 The Crown's submissions include the submission that this Court would not be satisfied that a less severe effective sentence is warranted. 39 By s6(3) of the Criminal Appeal Act 1912, this Court is required to dismiss an appeal against sentence unless a different sentence is warranted in law and should have been passed. That is irrespective of error in the process of reasoning which brought the sentencing judge to his or her determination: Astill (No. 2) 1992 64 A Crim R 289; Cocking [1999] NSWCCA 331; Simpson (2001) 53 NSWLR 704. In the last of those cases Spigelman CJ, with whom the other four members of the court agreed, said (at 720-1): Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefor" is not satisfied. 40 A sentencing guideline for armed robbery was set by this Court in Henry (1999) 46 NSWLR 346. The category of case specified for the purposes of determining the guideline was specified at [162]: (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case.

It was said that sentences for an offence of that character should generally fall between four and five years for the full term. 41 In Thomson and Houlton (2000) 49 NSWLR 383, it was made clear, at [161], that the category of case to which the guideline applied involved a late plea of guilty. Accordingly, any discount for an early plea of guilty was to be applied after a head sentence applying the guideline had been determined. 42 In Thomson and Houlton, this Court determined a guideline for the discount for an early plea of guilty. The Court said, at [160]: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

The Court added at [162]: In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate. 43 Obviously enough, the second offence charged (that committed on 14 March 2000) is the more serious one. It provides the appropriate starting point in my analysis. There are a number of features in common with the category of case to which the Henry guideline applies. There are then considerations which tend to make this a worse case and considerations which go the other way. 44 Aggravating features which tend to make this a worse case include the applicant's very poor criminal record (Henry contemplates no or little criminal record), that the offence was committed in company as well as involving a weapon, that a number of victims were terrorised, that the applicant was on parole for the same or similar offences at the time, and that the offence was also in breach of a recognizance entered into by the applicant to be of good behaviour. 45 Tending the other way, there was the early plea of guilty and the applicant's undoubted contrition for which a combined discount in the order of 30 per cent was warranted. This was also a case in which there was no serious need for specific deterrence in view of the applicant's acceptance of responsibility for his actions and the commendable progress he had made in rehabilitating himself. 46 Were I re-sentencing the applicant on the evidence before his Honour, a head sentence for this offence, before discount for plea and contrition, could not be fixed at less than six years imprisonment. That would then be reduced to not less than four years imprisonment for the early plea and contrition. 47 It is then unnecessary to carry a close analysis further. It would remain to increase the sentence appropriately for the offence to be taken into account on Form 1 in relation to that charge. More importantly, it would remain to determine an appropriate sentence for the first offence charged and for the serious offences on Form 1 to be taken into account in doing so. It would then be necessary to provide for partial accumulation in a way that produced an effective sentence sufficient to reflect the total criminality involved, having regard to the objective features of the offences and subjective considerations relating to the applicant. 48 Carrying that exercise through could not result in an effective sentence of less than the period of six years which was the effective sentence imposed by the sentencing judge. 49 The effective non-parole period determined by his Honour was two thirds of the effective sentence imposed rather than the provisional statutory proportion of three quarters. A non-parole period of less than four years would fail to reflect the degree of objective criminality involved in the totality of the offences. 50 For these reasons, I would not hold that different sentences were warranted in this case and should have been passed. It follows that the appeal must be dismissed. 51 The orders I propose are that leave to appeal be granted and that the appeal be dismissed. 52 Buddin J: I agree with Sperling J. -o0o-

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