Tatana v Regina

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21(3)(h), 44

R v Araya [2005] NSWCCA 283 CASES CITED: R v Singh [2001] NSWCCA 424 R v Do [2005] NSWCCA 209 Pearce v The Queen (1998) 194 CLR 610

COUNSEL: N. Noman - Crown B. Glennon - Applicant

SOLICITORS: S. Kavanagh - Crown David H. Cohen - Applicant

IN THE COURT OF CRIMINAL APPEAL 2006/2029

SULLY J HOWIE J LATHAM J

WEDNESDAY 13 DECEMBER 2006 Jacob David TATANA v REGINA Judgment 1 SULLY J: I agree with Howie J. 2 HOWIE J: The applicant and a number of other persons decided to steal a shipping container and its contents of 1,490 DVD players valued at close to $1 million. The container had been shipped to premises where the applicant and his co-offenders worked. The police became aware of the plan and lawfully intercepted telephone calls between various persons over a period from August 2002 until 23 October 2002 when the theft was to take place. The applicant and his co-offenders were arrested and charged with various offences. The applicant became separated from his co-offenders in the criminal justice system so that ultimately he came to be sentenced independently from his co-offenders and by another judge. The applicant seeks leave to appeal against the sentence imposed upon him on a number of grounds of appeal including a complaint of disparity with the sentences imposed upon the others. 3 The applicant initially pleaded guilty to the offence and other charges in the Local Court but was later given leave in the District Court to withdraw those pleas. Eventually the other charges were determined in his favour and the applicant pleaded guilty to the larceny offence. He came to be sentenced before Acting Judge Boulton on 11 November 2005. The co-offenders had been sentenced in November 2004 by Judge Berman SC. The applicant was sentenced on 25 November 2005 to a term of imprisonment of 3 years and 4 months with a non-parole period of 2 years and 6 months. The maximum penalty for an offence of larceny is imprisonment for 5 years. 4 There were five other persons who were charged with offences arising from the police investigation. One of them named Henare was charged with a separate offence of stealing some mobile telephones in November 2001 and was not a co-offender of the applicant. In my opinion his sentence can be disregarded: see R v Araya [2005] NSWCCA 283; R v Singh [2001] NSWCCA 424. Another person named August was charged with receiving but on a very limited basis in that he was prepared to store the DVD players. His sentence gives no guide to whether there is a justifiable sense of grievance arising on the part of the applicant and need not be further considered. 5 The other three persons involved were named Dick, Namana and Baker. Each was charged with the larceny of the DVD players and with other offences including the theft of mobile telephones for which Henare was sentenced. Judge Berman in sentencing each of them purported to apply Pearce so that his Honour specified the appropriate sentence for each offence before considering the issue of totality. Therefore it is reasonable to compare the sentences imposed upon each of those offenders for the larceny with that imposed upon the offender. However, the sentence for the larceny offence for each of the other offenders cannot be considered in isolation, at least so far as the non-parole period is concerned, because there is a practice of reducing the non-parole period when dealing with offences that are to be served cumulatively in order to achieve an appropriate relationship between the overall sentence and the overall non-parole period.

6 The sentences for the other offenders were as follows:

Offence 1 (Nov 2001): 3 years, npp 2 years from 15/10/04

Offence 2 (July 2002) 3 years, npp 18 months from 15/4/05

Larceny of DVD players 3 years, npp 1 year from 15/10/05

Total: 4 years with non-parole period of 2 years from 15/10/04.

Offence 1 (Nov 2001): 3 years, npp 2 years from 1/11/04

Offence 2 (July 2002) 3 years, npp 18 months from 1/5/05

Larceny of DVD players 3 years, npp 1 year from 1/11/05.

Total: 4 years with non-parole period of 2 years from 1/11/04

Offence 1 (Nov 2001) 2 years, npp 1 year from 12/11/04

Offence 2 (July 2002) 2 years, npp 1 year from 12/3/05

Larceny of DVD players 2 years, npp 9 months from 12/7/05

Total: 2 years 8 months with non-parole period of 1 year 4 months from 12/11/04. 7 In each case, when sentencing for the larceny of the DVD players, Judge Berman commenced with a term of 4 years. He discounted it by 25 per cent in the case of Namana and Dick by reason of the utilitarian value of their pleas of guilty and by 50 per cent in the case of Baker by reason of the utilitarian value of his plea and assistance to the authorities. His Honour found special circumstances in each case. 8 In evidence before Acting Judge Boulton were two agreed statements of facts, witness statements and transcripts of conversations recorded by police. His Honour was therefore entitled to find the facts on the basis of all of this material. The Judge had before him the sentencing remarks of Judge Berman that recited the facts as found by him. Acting Judge Boulton was not required to find facts in accordance with the findings of Judge Berman to the extent that the material before Acting Judge Boulton permitted him to come to a separate and independent view. 9 Briefly the statements of facts revealed that the informant to the police was a man named Junior Mekuri who worked in quality control at a container yard at Port Botany. The applicant was a forklift driver at those premises and Dick was a truck driver. On 23 October 2002 there was a container on the premises owned by LG Electronics that contained the DVD players. A few weeks before, the applicant had discussed the arrival of the container with Mekuri. On 23 October the applicant supplied a stolen delivery order for the DVD players to him. Mekuri informed police and a police officer posed as a truck driver to convey the container to another site where it was loaded on to another truck. The container was then taken to Port Kembla where it was unloaded. A short time later the applicant and Dick arrived at the site and were arrested. The police had lawfully intercepted telephone calls that indicated the involvement of these two men and that the theft would occur on that date. In the course of those conversations the applicant discussed with Mekuri supplying him with the delivery order. 10 The agreed statement of facts contained the following:

The Crown case as to the roles of Junior Mekuri and the accused and Arthur Dick are stated in Junior Mekuri's statement dated 7 October 2003 (namely paragraphs 14 to 23), Junior Mekuri's version is corroborated by 28 intercepted calls. (see also the previous agreed facts).

The statement of Mekuri indicated that the applicant had approached him and said that he had heard about a container that they could get with DVDs. Mekuri stated that the applicant continually asked him if he could organise a driver. Mekuri understood that the applicant was involved with his friend Dick. Eventually Mekuri heard from the applicant that he had the paperwork. According to Mekuri it was the applicant who rang him to tell him what was happening in relation to the theft of the container.

11 During the course of his sentencing remarks Acting Judge Boulton stated:

Police had obtained warrants to intercept telephone conversations between yourself, Mecouri (sic) and Arthur Dick. The documents in the Crown sentence summary contain transcripts of twenty-eight such calls, from late August up to and including the event itself on 23 October 2002. The transcripts are nothing short of damning and I propose to take you and the Court to a few excerpts. They will make it perfectly clear, I trust, that this was a long-standing plan where you and Dick would seem to have been, if not the prime participants, certainly among the prime participants. It would seem that on reading these excerpts that Dick, although an active participant, accepted your say-so on quite a number of occasions and that will emerge from these passages.

The Judge then read a number of extracts from the transcripts of telephone calls tendered by the Crown. He then stated;

Mr Tatana I have outlined some fragments of the conversations to emphasise that this was no spur of the moment affair. You had a central role in planning and coordinating this larceny, some would call it in modern jargon, a heist………….. 12 The applicant had one prior conviction being for an assault offence and the Judge treated him as having no relevant prior convictions. There was in evidence a pre-sentence report. This revealed that the applicant was 40 years of age and lived with his partner of 22 years and their two children. The applicant had been in full-time employment until the commission of the offence. The report contained the following:

Mr Tatana claimed that the only part he played in the theft of the containers was to liaise between parties via the phone in order to direct the offenders where to pick up and drop off the container.

The Judge indicated that he believed the applicant's part in the offence was "significantly more important than you were prepared to acknowledge". 13 Acting Judge Boulton referred to the sentencing remarks of Judge Berman and indicated that he was prepared to accept the same starting point of four years imprisonment. He allowed a discount of 15 per cent for the plea. His Honour was not, however, prepared to find special circumstances as Judge Berman had done. 14 The grounds of appeal are as follows:

The learned sentencing judge did not exercise parity regarding the sentencing of the co-offenders.

The learned sentencing judge erred in not finding "special circumstances" in the appellant's case.

Upon all the evidence, it was not open to the sentencing judge to find that the behaviour of the appellant was more serious than that of a co-offender, Mr Dick.

The learned sentencing judge's discretion miscarried and his Honour ought to have accepted that the appellant had shown remorse as expressed through his Counsel.

The learned sentencing judge erred in finding that the appellant did not have good prospects of rehabilitation. 15 Although the first ground of appeal is based upon what is asserted to be disparity between the sentence imposed upon the applicant with those imposed upon his co-offenders, it is more appropriate to first consider the grounds asserting error on the part of the sentencing judge. This is because this Court need only consider the question of parity if there is no error in the exercise of the sentencing discretion. A ground based upon parity assumes that the sentence imposed is otherwise correct. Further the grounds are, with respect, somewhat illogical in the way they have been listed because error found in a later ground of appeal may affect the outcome of an earlier ground. 16 The third ground concerns the Judge's assessment of the role played by the applicant in comparison with the other co-offenders. His Honour did this by considering the material in evidence before him. The ground is argued, in part at least, based upon the findings made by Judge Berman, but that is an irrelevant consideration because that Judge was making findings based upon the material before him and in relation to the particular offenders whom he was sentencing. A finding of fact by Judge Berman could not bind Acting Judge Boulton. 17 The prosecutor in addressing the Judge said:

I will be submitting Mr Tatana's involvement is roughly the equivalent of those persons I describe as the bulk, in particular Mr Dick.

That submission did not bind the Judge especially as material had been tendered in addition to a statement of facts, precisely so that his Honour could form his own view of the facts. In my opinion it was open to the Judge to determine his own belief of the respective culpability of the applicant vis a vis Dick and the other offenders from his own impression gained after assessing the listening device material. 18 In any event it is difficult to understand the significance of this submission. The judge sentenced the applicant on the basis of the same starting point as Judge Berman did for all offenders, including Dick. A difference in culpability would normally be reflected in a difference in the sentence to the detriment of the more culpable. There is no merit in this ground. 19 The fourth ground of appeal asserts that the Judge erred in not accepting that the applicant showed remorse as expressed through his counsel. The fifth ground is somewhat related in that it asserts that the Judge erred in finding that the applicant did not have good prospects of rehabilitation. During the course of counsel's address, he said:

……..As your Honour's aware, the plea of guilty does a number of things. One of the things it does in my respectful submission to your Honour is that it shows contrition on behalf of Mr Tatana and through me your Honour he expresses that contrition and regret for his actions…….

There was no expression of remorse contained in the pre-sentence report.

You(r) counsel tells me from the Bar table that you show contrition and regret and refers to your plea of guilty. I have already spoken about the plea of guilty. I can detect in those telephone conversations no sign whatever of conscious or social responsibility. I have read those twenty-eight conversations carefully. You were a man at the time in full time employment. There is no suggestion that the offence was committed out of need. I have no reason whatsoever to take the view that I would be confidant of your rehabilitation. There is no evidence in front of me whatsoever on that score. 21 It was acknowledged in written submissions filed for the applicant that the Judge was not obliged to accept what was said from the Bar table, but it was argued that there was nothing before the Judge that pointed to a lack of remorse. This argument misunderstands the onus of proof. It is for the applicant to satisfy the Judge that he is remorseful. The plea of guilty might, but does not necessarily, indicate contrition or remorse. In the present case the Judge found it to be an overwhelming Crown case so that the plea lost its potentiality as evidence of remorse. Further the Judge found that the applicant had attempted to underestimate his criminality to the officer preparing the pre-sentence report. This can be taken as a sign that the applicant is not truly contrite for his criminal conduct. It was well open to the Judge not to be satisfied of the applicant's remorse. 22 Similarly on the issue of rehabilitation it is for the applicant to satisfy the Judge that he had good prospects of rehabilitation before it can act as a mitigating factor. Contrary to what the ground of appeal asserts, the Judge did not find that the applicant did not have good prospects of rehabilitation. He simply held that he was not satisfied that the applicant had good prospects of rehabilitation: see s 21(3)(h) of the Crimes (Sentencing Procedure) Act. This ground was argued, in part at least, by comparing the situation with the co-offenders. But a sentencing judge is not bound by the findings of another sentencing judge in respect of other offenders. There is no principle of parity in fact finding. 23 In any event a consideration of the prospects of rehabilitation will vary in its importance from case to case. It will assume crucial importance in relation to, say, a young drug addict on an offence of dishonesty. But it can have no significance, say, in sentencing a woman in her seventies on a dangerous driving charge. In the case of a man in his forties with a family including teenage children who was in employment at the time of the offence and who has no apparent issues to be addressed by assistance from the Probation and Parole Service, it seems to me to have minimal significance. This was a case where the applicant saw an opportunity to make a considerable amount of money by being substantially involved in a very significant criminal enterprise requiring planning and the participation of others. It was not an offence committed as a result of some situation personal to the applicant that might be addressed so as to minimise future offending of a similar type. Apart from the personal deterrent factor arising from his being imprisoned, there was nothing to indicate that the applicant would not take a similar opportunity if it again presented itself. The fact that the Judge was not satisfied that the applicant was remorseful tended against a positive finding of his prospects of rehabilitation. 24 There is no substance in either of these grounds. 25 The second ground asserts that the Judge was in error in not finding special circumstances. Again the argument proceeds generally from a consideration of the findings made by Judge Berman and a submission that had his Honour sentenced the applicant he would have found special circumstances. This is irrelevant to this ground of appeal. Acting Judge Boulton was making a finding of fact and he was not bound by any finding made by Judge Berman. There will be many cases where judges might differ as to whether they would make a finding of special circumstances given that the same material was placed before them. It is largely an intuitive determination. As long as the finding was open to the sentencing judge it is not for this Court to interfere. 26 In any event Judge Berman found special circumstances on the basis that it was the first time in custody for each of the offenders before him and that they could benefit from supervision by the Probation and Parole Service. In the case of the applicant the only basis open for a finding of special circumstances was that it was his first time in custody. The applicant's pre-sentence report indicated that there was no issue to be addressed by the Service. This was a case where the Judge could easily have determined to impose a fixed term because there was nothing to be achieved by a period on parole. 27 There was no error in Acting Judge Boulton finding that there were no special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act. The ground has no merit. 28 That leaves a consideration of the issue of parity between the applicant and the co-offenders. This is a ground where there are considerable obstacles placed before the applicant in circumstances where the sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and in the remarks indicates why the judge is departing from the sentences imposed upon the others. Those obstacles became even greater where, as here, the difference is a result of legitimate fact finding on the part of the second judge. 29 There can, in my opinion, be no complaint about the head sentence imposed. The difference is attributable to the fact that the applicant justifiably received a lesser discount for the utilitarian value of his plea of guilty. This Court has considered the relevance of parity to the fixing of a non-parole period on more than one occasion. In R v Do [2005] NSWCCA 209, the Court stated:

17 It is further submitted that disparity arises from the fact that, because his Honour failed to find special circumstances in the case of the applicant but did so in the case of his brother, the resulting non-parole periods are so disparate that the applicant has a justifiable sense of grievance that should be addressed by this Court. Reliance is placed in this regard on what was said by Simpson J in R v Bell [1999] NSWCCA 423. It is submitted that this decision is authority for the proposition that disparity can arise between the sentences imposed upon co-offenders simply because of a finding of special circumstances in one case but not in the other.

18 Bell was considered by this Court in R v Wahabzadah [2001] NSWCCA 253. That was a case, like Bell, where the Court was constituted by two judges and, therefore, is not authority on matters of principle. In Wahabzadah the Court was constituted by Wood CJ at CL and myself. The applicant had relied upon Bell and the decision in R v Muavae [2000] NSWCCA 88 as supporting a similar argument as that raised in the present proceedings. During the course of my judgment, with which the Chief Judge at Common Law expressed his agreement, I stated: 15 While I accept, as I must do, that the principle of parity applies in all aspects of a sentence, including the non-parole period, the principle is concerned with ameliorating a justifiable sense of grievance on the part of the offender. If a disparity is occasioned by the operation of the law, there can be no justifiable sense of grievance arising simply because a proper application of the law in two different cases has given two different results. Specifically, s 44 of the Crimes (Sentencing Procedure) Act mandates that a non-parole period be not less than three-quarters of the term of the sentence unless there are special circumstances for it being less. I do not believe that there is any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances. 16 There is nothing in either Lowe v The Queen (1984) 154 CLR 606 or Postiglioni v The Queen (1997) 189 CLR 295 to suggest otherwise. Quite the contrary, in the latter case even the majority of the High Court were of the view that there was no disparity by reason of the different non-parole periods specified between the two offenders. Disparity only arises when the difference between the two sentences cannot be justified by a difference in the degree of the culpability of the offenders or in their personal circumstances. A difference in a finding as to whether special circumstances exist is a difference in a finding as to the personal circumstances of the co-offenders, and, if justified on the material before the sentencing judge, there can be no basis in my view upon which any sense of injustice can arise either in the collective mind of the community or in the individual mind of a co-offender. 17 It was submitted, on behalf of the applicant, that two decisions of this Court authorise appellate intervention where there is a disparity resulting from a difference in the finding of special circumstances even if the difference in the findings were justified. In my view, neither of those decisions are authority for such a proposition, but, if they were, I would not be prepared to follow them. But in both R v Bell [1999] NSWCCA 423 and R v Muavae [2000] NSWCCA 88 this Court only held that the personal circumstances of the appellant required a finding that special circumstances existed and the failure of the sentencing judge to do so was an error. In each case the disparity in the minimum terms of the sentences imposed upon the appellant and the co-offender simply highlighted the error that had been made.

19 I maintain the view that I expressed in those passages that generally disparity does not arise simply from the fact that a finding of special circumstances was made in respect of one co-offender but not in respect of the other. I am prepared to accept that there may be a case where, all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender but not in the other may give rise to a justifiable sense of grievance. But in the present case not all things were equal because of the different findings made in respect of the criminality of the two offenders and the appropriate head sentences. 30 It seems to me advisable for a judge placed in the position of Acting Judge Boulton to consider whether in the circumstances regard should be had to the findings of the judge dealing with co-offenders for reasons of comity and fairness. There may be a case where either the second sentencing judge or this Court feels constrained not to depart from a finding made by an earlier judge in order to ensure that a justifiable sense of grievance does not arise on the basis that there is no appreciable difference between the cases presented by two co-offenders and yet the results are markedly different. 31 As has already been noted, there was no error in his Honour's failure to find special circumstances. The case as presented by the applicant was different from that presented to Judge Berman by the co-offenders. Much of the argument in the written submissions is concerned with Henare, who was not a co-offender, or August, who was sentenced for a different offence with a very limited degree of criminality. No legitimate sense of grievance can arise from the sentences passed upon those two offenders. 32 However, at the end of the day the applicant is to spend six months longer in custody before being released to parole notwithstanding that he was sentenced for less criminal activity than his co-offenders. That is on the face of it a somewhat surprising and troubling outcome. It cannot be explained other than by a failure on the part of Acting Judge Boulton to find remorse or that the applicant had good prospects of rehabilitation. To that extent there was a difference between the applicant and the co-offenders. But to my mind that difference could not warrant the applicant being required to serve a substantially longer period in custody than persons who had committed significantly more crime. 33 It seems to me that a permissible means of avoiding this unacceptable situation would have been for Acting Judge Boulton, when confronted with that result, to have considered whether the need to preserve a proper parity with the co-offenders itself gave rise to special circumstances justifying a reduction in the non-parole period. Although matters giving rise to special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 will be, generally speaking, subjective considerations personal to the particular offender, they are not limited to such factors. As has already been noted, special circumstances may be found when sentences are being made cumulative in order to retain an appropriate ratio between the overall term and the overall non-parole period. In my opinion, the need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances enabling a principled avoidance of a situation of manifest unfairness arising from a too literal application of conventional sentencing principles and the requirements of s 44. Such a use of the concept of special circumstances will need, always, to be justified by the special requirements in a particular sentencing context. 34 This is not to suggest that disparity will generally arise simply because the application of s 44 to particular offenders has resulted in different sentences between co-offenders: Do is against that proposition. But this is an exceptional case where the subjective factors favourable to the co-offenders were insufficient to justify the fact that the applicant would spend longer in custody even though he was being sentenced for significantly less criminality. In the end it is a matter of degree and balance. The applicant clearly has a justifiable sense of grievance with the outcome of the two different sentencing proceedings. In order to avoid that outcome Acting Judge Boulton ought to have found that parity with the co-offenders amounted to special circumstances justifying a reduction in the otherwise appropriate non-parole period. However, proper sentencing principles and the findings made by Acting Judge Boulton limit the extent to which the non-parole period can be reduced to address parity. 35 I propose that leave be granted and the appeal be allowed so far as the non-parole period is concerned. The non-parole period specified by Acting Judge Boulton should be quashed and in lieu a non-parole period is specified of 1 year and 9 months to commence on 28 October 2005 and to expire on 27 July 2007 the day upon which the applicant is eligible to be released to parole. 36 LATHAM J: I agree with Howie J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.