Regina v Taufahema [2004] NSWSC 833 | Case summary

[4] that such risks crystallised in the shooting in fact by Penisini of the police officer. 16 The prisoner's case at trial was simple. He denied having had any knowledge, prior to the actual firing by Penisini of the five shots, that there had been any firearm, let alone four loaded firearms, anywhere in the Commodore. He gave evidence to the jury to the effect that the shooting came as a complete surprise to him; that his immediate reaction was to panic and to do what he could to get out of the Commodore as quickly as possible, and then to get away as quickly as possible from the scene of the shooting; that after he had got out of the Commodore but before he had decamped from the scene he had had tossed to him by Penisini an item wrapped in cloth, but which from its touch he knew at once to be a firearm. The prisoner told the jury that he simply ran off in a panic, taking that wrapped firearm with him; and that he did his best to evade apprehension by the police, even to the extent of getting rid of the weapon by throwing it into part of the garden of a private residence not far removed from the scene of the shooting. 17 The jury's verdict on Count 1 makes plain that the jury did not regard the exculpatory version given by the prisoner at trial as remaining, ultimately, open as a reasonable possibility. I share that view. 18 It is equally plain that the jury was satisfied beyond reasonable doubt that the prisoner was culpable, as a joint criminal entrepreneur, for Constable McEnallay's murder by Penisini. I, too, am so satisfied. 19 There is no need to dilate upon the objective criminality of Constable McEnallay's murder. The Constable was a serving police officer doing his duty as such. In the course of doing that duty, he was shot at point-blank range. There is no circumstance, absolutely none, apt to mitigate the objective criminality of that cowardly and callous murder. 20 It will be necessary to say, presently, something about the subjective features of the prisoner's individual case. Before doing that, it is necessary to consider what befell the other three participants in the shooting. 21 Sioni Penisini pleaded guilty to the murder of Senior Constable McEnallay. He pleaded guilty, in addition, to one count of using a firearm without lawful authority; and to a count of assault upon a lady whose motor vehicle he had attempted to commandeer in the course of his efforts to evade apprehension in the immediate wake of the shooting, and of having attempted, without that lady's consent, to take her motor vehicle for the purpose of driving it, he then being armed with an offensive weapon and being in the company of John Taufahema. 22 On 2 October 2003 Penisini was sentenced by Wood CJ at CL. For the unauthorised use of a firearm, he was sentenced to a fixed term of imprisonment for 5 years. For the attempted car-jacking he was sentenced to a concurrent term of imprisonment for 6 years. For the murder itself he was sentenced to imprisonment for 34 years, with a non-parole period of 23 years. The sentences were partially accumulated so as to yield an effective overall result of a head sentence of 36 years and a non-parole period of 25 years. 23 John Taufahema, the prisoner's brother, pleaded not guilty to the murder of Senior Constable McEnallay. He was tried accordingly, and was found guilty by the jury. Prior to his trial, Taufahema pleaded guilty to a count of having used, in company with Penisini, an offensive weapon with intent to prevent their lawful apprehension; to a count of having assaulted the same lady as was previously mentioned, with intent to take her motor vehicle; and of having attempted, without her consent, to take her vehicle for the purpose of driving it, he then having been armed with an offensive weapon and having been in the company of Penisini; and to a count of having used a firearm without authority. 24 He, too, was sentenced on 2 October 2003 by Wood CJ at CL. For the unauthorised use of a firearm he was sentenced to a fixed term of imprisonment of 5 years. For the attempted car-jacking he was sentenced to a concurrent fixed term of imprisonment of 6 years. For the use of an offensive weapon in company with intent to prevent lawful apprehension he was sentenced to a partially concurrent fixed term of 7 years. For the murder itself he was sentenced to imprisonment for 21 years, with a non-parole period of 14 years. 25 There was a partial accumulation of the sentences, yielding an effective overall head sentence of imprisonment for 24 years, with an effective non-parole period of 17 years. 26 Meli Lagi was acquitted at trial of Senior Constable McEnallay's murder, but was found guilty of an alternative count of using an offensive weapon in company with John Taufahema with the intention of preventing their lawful arrest. He had earlier pleaded guilty to one count of possessing a firearm without authority. 27 He, too, was sentenced on 2 October 2003 by Wood CJ at CL. For the offence of possessing a firearm without authority he was sentenced to a fixed term of imprisonment of 4 years. For the offence of having used an offensive weapon in company with the intention of preventing lawful arrest, he was sentenced to a concurrent term of 10 years, with a non-parole period of 6 years. There was no partial accumulation of the two sentences. 28 It will be, obviously, necessary to sentence the present prisoner upon a basis which takes proper account of the principle of parity, having regard to the sentences variously passed by Wood CJ at CL upon Penisini, John Taufahema, and Lagi. I shall return presently to that aspect of the prisoner's case. 29 Before doing so, it is appropriate to consider the relevant subjective features of the prisoner's individual case. 30 The prisoner was born on 7 June 1976. He is, thus, now aged 28 years and some 3 months. In March 2002, at the time of Constable McEnallay's murder, the prisoner was aged 25 years and about 9 months. He is in what appears to be a fairly well-established and stable domestic relationship from which he has a 2 year old daughter. He appears to have committed and useful family support. 31 The prisoner was born in Tonga. He is the eldest of 11 children. He migrated with his family to Australia in 1988 when he was 12 years of age. He seems to have had a happy enough early life in Tonga. His progress after he came to Australia was unsettled, probably due to cultural dislocation leading to a reaction against previous patterns of parental discipline, and leading on to other inappropriate behaviour. 32 The prisoner left school at the age of 16 and without having obtained his School Certificate. According to the pre-sentence report, the prisoner "reported having been mostly unemployed until his release from custody in 2001 and claimed he had been working fairly consistently for approximately 8 months as a labourer before his arrest". 33 The prisoner has significant criminal antecedents. His juvenile record began in July 1992 when various control orders were made against him in the Children's Court in connection with offences of robbery whilst armed and in company and ancillary offences. Thereafter, and while still a juvenile, the prisoner accumulated convictions and penalties for escaping from lawful custody; for the malicious destruction of property; for stealing; for illegally using, as a passenger, a conveyance; for possession of a shortened firearm; for larceny of a motor vehicle; for being armed with intent; for assault occasioning actual bodily harm; and for resisting arrest. 34 On the 21st February 1995 the prisoner was dealt with in the Sydney District Court for stealing a motor vehicle, for assault, and for robbery. He was sentenced to, respectively, a fixed term of 6 months imprisonment; a fixed term of 12 months imprisonment; and imprisonment for 3 years and 6 months to comprise a minimum term of 2 years and an additional term of 18 months. In December 1997 he was dealt with for a number of traffic offences, but they were all dealt with by way of fines. On 30 April 1998 the prisoner was dealt with in the Burwood Local Court in connection with a number of offences of which the most serious were the offences of having custody of an offensive implement in a public place; an offence of being armed with intent to commit an indictable offence; and an offence of possessing an unauthorised firearm not being a prohibited firearm. For the first offence he was sentenced to a fixed term of 6 months imprisonment; for each of the second and third offences he was sentenced to imprisonment for 16 months to comprise a minimum term of 12 months and an additional term of 4 months. All of the sentences were concurrent. 35 On 16 December 1999 the prisoner was dealt with in the Sydney District Court on charges of assault and assault occasioning actual bodily harm. For the first of those offences he was sentenced to a fixed term of 12 months' imprisonment. For the other offence he was sentenced to a minimum term of imprisonment of 2 years and 6 months, to conclude on 21 July 2001, with an additional term of 10 months concluding on 21 May 2002. He lodged appeals with the Court of Criminal Appeal, but they were summarily dismissed on 6 October 2000. 36 On 20 May 2002 the prisoner was again dealt with in the Local Court for a number of driving offences, all of which were dealt with by the imposition of fines. 37 As of 27 March 2002, the date of Constable McEnallay's shooting, the prisoner was at conditional liberty and serving the parole period ordered in the Sydney District Court on 16 December 1999. That parole was subsequently revoked, and the prisoner spent the period from 28 March 2002 until 22 May 2002 in custody, serving the balance of his 1999 sentence. 38 The pre-sentence report, Exhibit C3 on sentence, contains the following analysis of the prisoner's antecedents: " History of Violence Mr. Taufahema's criminal record, both as a juvenile and adult, appear to reflect a propensity for violence. It is noted that Mr. Taufahema was referred to, and commenced participation in, the Violence Prevention Program whilst in custody at Long Bay Correctional Centre in 2001. He was withdrawn from that program, however, having completed the assessment stage only, as a result of incurring internal misconduct charges. Service records indicate the offender's level of commitment to the program, while initially high, fell away considerably towards the end of the program. It is noted that a psychiatric report dated 18 April 2004 recommended further testing of the offender to determine whether there were any particular underlying issues that may have contributed to the offender's commission of violent offences as indicated in his criminal history. It is noted that Mr. Taufahema has had significant periods of contact with a psychologist at the MRRC since his incarceration in 2002. Discussions with the psychologist indicate the focus of their contact has been in assisting the offender manage his anticipated lengthy incarceration and dealing with the impact of same, as well as the nature of this offence, on his family, partner and child. Progress in Custody Mr. Taufahema has been housed at the MRRC since his arrest for this offence on March 2002. He has incurred 2 internal charges since that time, those being on 8 July 2002 - Possess Drug Implement and 11 December 2002 - Fail Urine Test. The offender received 42 days off visits for the former charge and 2 days in cells for the latter. Discussions with his immediate wing supervisor indicate Mr. Taufahema is not a management problem and he is generally compliant with prison routine." 39 The summary which concludes the Pre-Sentence Report observes that the prisoner's "……….. lengthy criminal record and conviction for this offence indicates a propensity for overt violence, typically in the company of close associates". The summary makes, as well, this observation: "It is of grave concern that this offence was committed while Mr. Taufahema was subject to the strictest of parole conditions and that his criminal record reflects a similar pattern of re-offending whilst under supervision." 40 It is appropriate to note, in the present context, the report from Dr. Ben Teoh dated 22 April 2004 and admitted as Exhibit P1 on sentence. Dr. Teoh is a consultant psychiatrist and a physician in Addiction Medicine. Dr. Teoh's report speaks of having made a preliminary assessment of the prisoner on 18 April 2004, but gives no particulars of the nature of the assessment or of any preliminary conclusions reached by Dr. Teoh. The report recommends "further evaluation including obtaining collateral information from his family, neuropsychological testing and Personality Inventory Test, to determine possibility of organic brain syndrome and to understand his personality profile". It was this recommended further evaluation of which I spoke earlier when explaining the delay in bringing to finality the proceedings on sentence. 41 The prisoner has been in custody since 27 March 2002. His present classification is A2, and he is designated, at present, as an extremely high risk prisoner. Details of what this entails, and a helpful discussion of future probabilities, is provided by the evidence given by Mr. Dominic Pezzano of the Department of Corrective Services. Put very simply, the prisoner, when now sentenced, will continue for the time being to have his A2 classification and his extremely high risk designation. He will come under the regular management of the Serious Offenders Review Council. His classification and his designation will be regularly reviewed. He is not at present in any form of segregation; and as I understand Mr. Pezzano's evidence, there is no present likelihood that he will be in the future in any kind of segregation. His present classification and restriction are burdensome in their practical consequences; but provided that he behaves himself while in custody, his particular case will be managed in such a way as to maximise his freedom of movement within the gaol system, and his access to suitable educational and vocational assistance. 42 The prisoner's prospects of rehabilitation are, in the current state of the relevant evidence, difficult to assess. He continues to maintain his complete innocence of any culpable implication in the shooting of Constable McEnallay. He is, of course, completely entitled to take that view; but the fact that he does take it makes it even more difficult than it would otherwise be to make a reasonable assessment of his prospects of rehabilitation. I think that the only fair approach that can be taken as matters now stand is to regard him as a person who has very real problems with violence and substance abuse; but who does not seem to be beyond the reach of rehabilitation given time and patience, and given, of course, a willingness on his own part to cooperate in whatever relevant programmes are made available to him whilever he continues in custody. 43 The late Constable McEnallay's father and fianc�e have made victim impact statements which each of them read, upon their request, to the Court. Mr. McEnallay's statement was made on behalf of his wife and surviving son, as well as on his own behalf. No person of ordinary decency and sensitivity could fail to be moved, and deeply moved at that, by what is said by Mr. McEnallay and Miss Mahon in their respective statements. It is trite that the Court is not permitted to increase what would otherwise be a proper sentence, by reason of the contents of those statements. All that the Court can do is to assure Mr. McEnallay and Miss Mahon that the Court has considered the contents of the statements; is properly sympathetic to what is said in the statements; but can do, in the end, nothing more concrete or practical about the statements than to express the hope that the opportunity to speak out has itself been of some healing value. 44 Apart from the foregoing matters, I have had regard to those matters which I am required to consider pursuant to section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is not necessary, I think, to make any extended additional analysis of the section 21A requirements. 45 There remains one major matter for consideration: namely, the question of parity as between the present prisoner and his three co-offenders. 46 The principle itself is well established. It is conventional to explain the principle by reference to various of the statements made by the decision of the High Court of Australia; Lowe v The Queen 1984 154 CLR 606. It will suffice for present purposes to quote from the judgment of Dawson J: "There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. Justice should be even-handed and it has come to be recognised ………………… that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." [154 CLR at 623] 47 If one applies the principles there stated to the given facts of the present case, then it seems to me that the cases of Penisini and Lagi are immediately distinguishable from the case of the present prisoner. 48 Penisini pleaded guilty to all the charges brought against him including the charge of murder. He became thereupon entitled to a significant discount of what would have been otherwise a proper sentence for him. No such consideration avails the present prisoner. The present prisoner pleaded not guilty to each of the two charges which went to the jury. He maintains still that he is completely innocent. He is entitled to no discount whether because of an early plea of guilty or because of remorse in the requisite legal sense. 49 There is the additional consideration that Penisini was the person who actually fired the fatal shots which brought about Constable McEnallay's death. It must follow, it seems to me as a matter of common sense, that Penisini's objective criminality is significantly greater than the objective criminality of his three co-offenders, including the present prisoner. 50 The case of Lagi is distinguishable, in my view, on any of a number of obvious grounds. The most significant of them is that he was acquitted outright by the jury on the murder charge. He stood for sentence, therefore, upon a basis radically different from the basis upon which the present prisoner stands for sentence. The sentences passed upon Lagi are, in my opinion, manifestly unhelpful as a guide to what should be done in the case of the present prisoner. 51 The case of the prisoner's brother, John Taufahema, cannot be so easily disposed of. Both the Crown and learned counsel for the prisoner submitted that the sentences passed upon John Taufahema were properly available as guides to the sentences which ought to be imposed, in conformity with the principle of parity, upon the present prisoner. I accept, at least in general terms, that submission. What ought to result in terms of the setting of sentences for the present prisoner depends upon a closer examination of John Taufahema's case. 52 Wood CJ at CL, when he came to sentence John Taufahema, made a careful and detailed examination of the relevant objective and subjective features. What his Honour had to say in those respects occupies from paragraph 124 through paragraph 156 of his Honour's remarks on sentence. It is, obviously, not possible to reduce such a body of material into three or four crisp sentences. 53 John Taufahema's position, as thus analysed by Wood CJ at CL, is obviously not identical at every point with the present prisoner's situation. Thus, to take one obvious point of difference, Wood CJ at CL allowed John Taufahema a discount of 15 per cent in consideration of "the utilitarian value of ………(his) …….. pleas …….(of guilty), and for the fact that such pleas and the manner in which the defence was conducted effectively permitted a shortening of the trial". There were no pleas of guilty from the present prisoner; and although he made some helpful formal submissions at his trial, I am unpersuaded that the manner in which his defence was conducted, - (and properly conducted I should be quick to add), - would justify on a realistic view that there was much effected thereby in the way of a shortening of the trial. Insofar as it might be thought that there was some such shortening, then I would not see the case as being one in which it would be practicable to attempt a precise percentage quantification of reduction in what would otherwise be a proper sentence. 54 John Taufahema was the second of the 11 children in his and the prisoner's family; and he is aged some 2 years younger than the prisoner. They appear to be, and to have been at all material past times, fairly close as brothers. 55 John Taufahema had, when he stood for sentence, not insignificant criminal antecedents. They are not as numerous as those of the present prisoner; but they include a number of offences of violence. Wood CJ at CL had, in connection with his sentencing of John Taufahema, the benefit of expert clinical and forensic psychological evidence from Dr. W. J. Taylor. As previously explained, there is no comparable material available to assist in the case of the present prisoner. 56 John Taufahema stood for sentence, not only for his culpability in connection with Constable McEnallay's murder, and his concomitant culpability in connection with the unauthorised use of a firearm; but he stood for sentence, also, in connection with a very serious car-jacking offence, something which formed no part of the charges brought against the present prisoner. 57 In balancing up the comparative situations of the present prisoner and of his brother, it is timely to recall yet again that sentencing is an art and not a science. That art of sentencing crystallises, as is pointed out repeatedly in the relevant authorities, in what is described by those authorities as an instinctive synthesis; it being kept carefully in mind that, of course, an instinctive synthesis in that sense is not at all the same thing as idiosyncratic whim or merely subjective fancy. 58 It seems to me, therefore, that when one comes to strike in a sensible way a balance as between the two cases of the prisoner and his brother, it accords with principle and with broad practical common sense alike to regard the cases as so sufficiently similar overall as to justify using the sentence passed upon John Taufahema as a guideline to the sentence which ought now to be passed, with a proper regard for parity, upon the present prisoner. 59 John Taufahema was sentenced, for his unauthorised use of a firearm, to a fixed term of imprisonment for 5 years. I see no reason why any lesser sentence should be passed upon the present prisoner for that same offence committed by him. 60 For the murder of Constable McEnallay John Taufahema was sentenced to imprisonment for 21 years with a non-parole period of 14 years. I see no reason to extend any greater leniency to the present prisoner. I am unpersuaded, by the same token, that the present prisoner can fairly be sentenced to any more severe term of imprisonment. 61 The two sentences thus passed upon John Taufahema were so dated as to entail that he would serve 3 years of the fixed term of 5 years before the sentence passed upon him for the murder began to run. I think that it would be fair, similarly, to accumulate partially the sentences now to be passed upon the present prisoner; but it seems to me that it would be fair to allow a slightly lesser accumulation of sentence in order to allow for the fact that John Taufahema was sentenced for a greater number of particular and serious offences than the present prisoner. I think that a partial accumulation of 2 years would do what is just in that regard. 62 I have considered the matter of special circumstances. I think that the prisoner's age, and the burdensome conditions of his present incarceration ought properly to be recognised as special circumstances. I recognise the partial accumulation of sentence which I propose, as another special circumstance, but there is a need to be careful not to make on that account such an adjustment of sentence as to cancel out practically the accumulation itself. I have departed from the statutory norm of 75 per cent, but only to the modest degree that is in my opinion fairly warranted. 63 Motekiai Taufahema for the offence of your unauthorised possession of a firearm you are sentenced to imprisonment for a fixed term of 5 years to commence on 27 March 2002 and to expire on 26 March 2007. I set no non-parole period in respect of that sentence because of the practical effect of the sentence which I propose to pass in connection with the offence of murder. 64 For the offence of murder of which you have been convicted, you are sentenced to imprisonment for 21 years to commence on 27 March 2004 and to expire on 26 March 2025. I set a non-parole period of 14 years to date from 27 March 2004 and to expire on 26 March 2018, which will be the day on which you will first become eligible for release to parole. 65 The overall effect of the sentences thus passed upon you is a head sentence of 23 years with an effective non-parole period of 16 years.

Regina v Taufahema

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