Regina v Muavae [2000] NSWCCA 88 | Case summary

1 ABADEE J: The applicant seeks leave to appeal from a sentence imposed upon him on 16 April 1998 by his Honour Judge Stewart in the District Court. At the time of sentencing his Honour sentenced a co-offender by the name of Tagatanuu. The applicant pleaded guilty to two counts of robbery in company carrying a maximum penalty of twenty years penal servitude and two counts of steal a motor vehicle carrying a maximum penalty of penal servitude for five years, one count of an offence of armed robbery carrying a maximum penalty of twenty years and one offence that appeared on a Form One. 2 The offences of robbery in company were committed on 12 June 1997 and on 17 June 1997 respectively. The armed robbery occurred on 17 June 1997, the two offences of stealing motor vehicle and that of negligent driving, the latter appearing on the Form One were alleged to have been committed on 17 June 1997. 3 The applicant pleaded guilty to the various charges against him and asked for the Form One offence to be taken into account. The robberies or the three robberies that were committed on 12 June 1997 and 17 June 1997 respectively were committed by the applicant and a co-offender as will be seen from the reasons within a short period of time. 4 The applicant was a man with no prior convictions who was on holidays in Sydney from New Zealand. He had met the co-accused Tagatanuu, a school friend, and during the applicant's holidays in Sydney Mr Tagatanuu introduced him to drug use and supplied drugs to him. Over the period during which the offences were committed both offenders engaged in drug and alcohol use to a significant extent. The co-accused Tagatanuu pleaded guilty in respect of the robbery account, he was sentenced to a minimum term of four years with an additional term of three years. In his sentence the sentencing judge found special circumstances. In respect of the robbery accounts the applicant however was sentenced to five years penal servitude consisting of three years nine months penal servitude and an additional term of one year and three months to commence at the expiration of the concurrent sentences. In respect of the counts involving stealing a motor vehicle the applicant was sentenced to a fixed term of twelve months penal servitude to commence on 24 March 1998 and to expire on 23 March 1999, such sentences to be served concurrently with the sentences imposed for the robbery offences. 5 There can be no doubt of the seriousness of the offences that were committed during the period in June of 1997. The offences were committed upon defenceless taxi drivers going about their business. Further, the offences were committed upon taxi drivers who are particularly exposed to the risk of robbery having regard to their particular occupation. There can be no doubt that a general deterrence factor exists in respect of sentencing for robbery of taxi drivers. 6 In the applicant's submissions the claim is made that the minimum term imposed upon the applicant was manifestly excessive when compared to that imposed on the co-offender. A further ground is advanced that his Honour erred in finding that no special circumstances existed in his case. That is to be contrasted with that found in the case of Tagatanuu pursuant to s 5 (2) of the Sentencing Act (1989). In the result the applicant was sentenced to three years nine months minimum term whereas the co-offender was sentenced to a period of four years minimum term. It has been submitted that the applicant and Mr Tagatanuu were not equally culpable and that the evidence disclosed that Mr Tagatanuu was the principal offender in each of the robberies. Clearly they were both engaged in a joint criminal sentence and clearly it was his Honour's intention that Tagatanuu should receive a significantly higher head sentence than the applicant. In sentencing Tagatanuu his Honour referred to Tagatanuu's prior criminal record and to the fact that he was subject to two recognisances at the time that he committed the present offences. He was also being dealt with for three matters taken into account on a Form One. On the other hand the applicant had no prior criminal record and only had one matter on a Form One. 7 His Honour made findings to the effect that in terms of culpability really the greater culpability suggested was that on the part of Mr Tagatanuu. It is submitted by the applicant in this case that despite the greater criminal culpability on the part of Tagatanuu in respect of the three robbery offences that nevertheless his Honour failed to reflect the objective differences to a sufficient degree in the minimum terms imposed. 8 It was also submitted on behalf of the applicant that there were significant distinctions to be made between on the one hand the subjective circumstances relevant to the case of Mr Tagatanuu and on the other hand the subjective circumstances that were revealed in the case of the applicant. It was submitted that despite the fact that the evidence and findings would suggest lesser culpability on the part of the applicant and more favourable subjective circumstances in his favour as contrasted with the position of Tagatanu his Honour was in error in imposing a minimum term which was similar to that imposed upon the co-offender. Further or alternatively as I have said the applicant submitted that his Honour erred in finding that no special circumstances existed pursuant to s 5(2) of the Sentencing Act (1989). 9 In Postiglioni v The Queen (1997) 189 CLR 295 at 302 Justices Dawson and Gaudron made it abundantly clear that discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. In essence, the complaint that is made by the applicant is a similar complaint based upon the principle of parity. As their Honours also made clear (at page 302) the head sentence is but one component of the sentences and that a proper comparison involves a consideration of all components, being the minimum sentence as well as the additional term. 10 It seems to me that in all the circumstances of this case, and it is not necessary for me to revisit them, that the applicant has made good his complaint by reference to the principle of parity and particularly by reference to that principle as it applies in respect of the minimum terms imposed upon him and imposed on the co-offender as well. It seems to me therefore that on such basis error has been reflected and that this Court should, in the circumstances, re-sentence. 11 There is a question as to how the Court should go about the sentencing. However, it seems to me that the appropriate route in the circumstances of this case to follow is to adopt the view that special circumstances do exist in this particular case. When one looks at all of the materials it appears that is a proper basis for re-sentencing and to vary the statutory proportions to be found in s 5(2) on a re-sentence. 12 In my view, the overall sentence of five years is not shown to be an erroneous one in the circumstances of this case. There was almost a mini crime wave that the applicant was involved in during what he contemplated his short holiday period in Sydney. That crime wave was that he was involved in gave rise to serious offences being committed against taxi drivers going about their own business. Clearly a deterrent sentence was called for and clearly a deterrent sentence is called for. It seems to me therefore that although the applicant has made good his claim that we should re-sentence, in my opinion such re-sentencing should not involve a departure from a head sentence of five years for the three robberies. 13 It does however seem to me that having regard to the materials, including the fact that the applicant is a relatively young person, that this is his first time in the gaol system and further having regard to what I consider to be in the circumstances the need for a longer period of rehabilitation, that the proper way to re-sentence involves re-sentencing upon the basis of a head sentence of five years but on the other hand with a finding of special circumstances for the reasons that I have stated. 14 It seems to me therefore that in the circumstances the applicant therefore has made good his appeal. I would propose the following orders, that in respect of counts 1, 2 and 4 that leave to appeal should be granted, the appeal should be allowed and that the applicant should be re-sentenced and sentenced to a period of five years penal servitude with a minimum term of two years and nine months to commence on 24 March 1998 and to expire on 23 December 2000 and to an additional term of two years and three months to commence on 24 December 2000 and to expire on 23 March 2003. 15 It seems to me that no basis has been made for interfering with the fixed terms of twelve months that have been imposed concurrently in respect of counts 3 and 5 and I would propose confirming the sentence of a fixed term of twelve months penal servitude for those two counts commencing on 24 March 1998 and expiring on 23 March 1999, to be served concurrently with the existing sentences. They are the orders that I propose. 16 JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour.

Regina v Muavae

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