1. Fakatounaulupe Ngata be convicted of aggravated robbery.

2. Fakatounaulupe Ngata be sentenced to three years imprisonment to commence on 25 November 2014.

3. The sentence be reduced by 29 months to take account of the offer of assistance to the authorities and giving evidence in the trial of the accused.

4. A non-parole period of 18 months be set, to begin on 25 November 2014 and to end on 24 May 2016.

5. The charges of affray and causing harm while participating in an illegal group be dismissed.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - aggravated robbery - in company - in a public place - transferred offences - back-up offences - remorse - assistance to authorities - principles applying to discount on sentence for assisting authorities

Crimes Act 1900 (ACT), ss 35A, 375

Crimes (Sentencing) Act 2005 (ACT), ss 7, 36, 57, Pt 4.4

Legislation Act 2001 (ACT), s 190

Magistrates Court Act 1930 (ACT), s 90B

Supreme Court Act 1933 (ACT), s 68CA, Pt 8

Allred v The Queen [2015] ACTCA 21; (2015) 10 ACTLR 325

Auld v The Queen [2013] ACTCA 21

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Grimshaw v Mann [2013] ACTSC 189

Islam v The Queen [2014] ACTCA 2

Miles v The Queen [2014] ACTCA 41

Munro v The Queen [2014] ACTCA 11

Murphy v The Queen [2005] ACTCA 43

Oliver (1980) 7 A Crim 174

Pavicevic v The Queen [2010] ACTCA 25

Roberts, Lewis and McVean (1994) 73 A Crim R 306

R v Campbell [2010] ACTCA 20

R v Cartwright (1989) 17 NSWLR 243

R v Flowers [2014] ACTCA 13

R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267

R v Hodge [2015] ACTSC 214

R v Robertson [2010] ACTCA 19; 174 ACTR 32

R v Sukkar [2006] NSWCCA 92

Slater v The Queen [2014] ACTCA 33

Taylor v The Queen [2014] ACTCA 9

T v R [2007] NSWCCA 62

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

York v The Queen (2005) 225 CLR 466

Zocchi v The Queen [2013] ACTCA 12

Legal Aid ACT (Defendant)

1. On 4 October 2014, Fakatounaulupe Ngata went with two other persons, the co-accused, to Belconnen Shopping Mall where they waited for the two victims to attend a motor cycle parking bay. When the victims appeared, the three, Mr Ngata and his two co-accused, attacked the two victims, punching them severely, and then stole the t-shirts that they were wearing.

2. As a result, Mr Ngata was charged with aggravated robbery. The circumstances of aggravation was that Mr Ngata was in company at the time.

3. Aggravated robbery is an offence against s 310(a) of the Criminal Code 2002 (ACT), attracting a maximum penalty of 2500 penalty units (at the time, a fine of $375,000) and 25 years imprisonment.

4. As the maximum penalty shows, the offence is to be regarded as a very serious one by the court. See Oliver (1980) 7 A Crim 174 at 176.

5. Mr Ngata also asked me to take into account one other offence of aggravated robbery. I inquired of him personally, as required under s 57 of the Crimes (Sentencing) Act 2005 (ACT), if he wished me to do so and confirmed that no proper inducement had been made to him for that purpose. I will take it into account.

6. When he was committed to this Court, two further offences were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). Those were offences of affray and of causing harm when participating in a criminal group.

7. Affray is an offence under s 35A of the Crimes Act 1900 (ACT), which provides for a maximum penalty of two years imprisonment. It is thus a summary offence. See s 190 of the Legislation Act 2001 (ACT).

8. Causing harm when participating in a criminal group is an offence prohibited by s 653 of the Criminal Code and renders Mr Ngata liable to a maximum penalty of 10 years imprisonment.

9. A back-up charge is defined in s 68CA of the Supreme Court Act as follows:

back-up offence, in relation to an indictable offence (the first indictable offence), means an offence--

(a) that is--

(i) a summary offence; or

(ii) an indictable offence that is capable of being dealt with summarily by the Magistrates Court under the Magistrates Court Act 1930, part 3.6 (Proceedings for offences punishable summarily); and

(b) at least some of the elements of which are similar to the elements that constitute the first indictable offence; and

(c) that is to be prosecuted on the same facts as the first indictable offence.

10. The two transferred offences appear to be back-up offences, for at least some of the elements of each of those offences are similar to the elements of aggravated robbery. Thus, for the offence of affray, elements include violence or a threat of violence directed at the victim where such violence or threat of violence would be likely to cause a reasonable person to fear for his or her safety.

11. The offence of causing harm when participating in a criminal group includes an element of engaging in conduct which causes harm to someone else and where the offender is reckless about causing that harm. The offence is punishable summarily under s 375 of the Crimes Act with the consent of the offender.

12. Aggravated robbery includes as an element the use of force on someone else or the threat of use of force on someone else.

13. These identified elements are, in my view, similar elements within the meaning of the definition of "back-up offence" referred to above (at [9]).

14. The other requirement is that the offences arise out of the same facts as the offence of aggravated robbery.

15. In each case, the violence alleged, which is the harm alleged, is the violence perpetrated on the victims on 4 October 2014 when the aggravated robbery was committed.

16. Ordinarily, the prosecution would not proceed with a back-up charge in the event that the principal charge proceeds. That is usual where the back-up charge is one that is wholly or almost wholly constituted of elements in the principal charge, such as where the principal charge is, for example, assault occasioning actual bodily harm and the back-up charge is common assault, or the principal charge is driving with a prescribed concentration of alcohol and the back-up charge is driving under the influence of alcohol. This concept, however, is not expressly included in the definition of back-up charge. The two offences here seem to me, however, to be back-up charges in this sense. It would offend the totality principle for the sentences for aggravated robbery and affray not to be concurrent. See R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at 275-6; [43].

17. While the offence of causing harm when participating in a criminal group has elements of criminality in addition to those that overlap and are similar and so could include some punishment that is not concurrent, it seems to me that most of the criminality is encompassed in the aggravated robbery charges. In any event, this offence would be a related offence in terms of s 68CA of the Supreme Court Act, where it arises substantially out of the same circumstances as those for which the aggravated robbery arose.

18. I was informed that the charges are regarded as back-up charges and that they should not proceed in the circumstances.

19. The background to the offence is that Mr Ngata was, at the time, the Sergeant-at-Arms within the Canberra Chapter of the Rebels Outlaw Motorcycle Gang. The function of the Sergeant-at-Arms is to maintain discipline and the security of the Chapter and its territory. He described the role in an interview he gave to police on 8 September 2015 as follows:

Well, if any other gangs come into town or there was a beef between us and the other rival gang, if there was a member that needed to be sorted out, there was a beef in-between chapters that needed to be sorted out, I was the guy to sort that out.

20. On 4 October 2014, Mr Ngata was with one of his co-accused, a member of the East Canberra Chapter of the Gang, when the other co-accused contacted them telling them that a couple of members of a rival gang, the Finks Outlaw Motorcycle Gang, were at the Belconnen Mall. Mr Ngata said that he would have to "go and see what these jokers are all about". He intended, at the time, to attack them, as they were from a different gang, apparently trespassing on the territory of Mr Ngata's Gang, and nobody knew why they were in town.

21. Mr Ngata agreed with the two accused to meet at the Belconnen Westfield Shopping Centre and he and the co-accused he was with arrived just before 5 pm on that Saturday and met up with the other co-accused.

22. They went to the lower car park level and to a motorcycle parking bay where they saw three Harley Davidson motorcycles which they guessed were the bikes that belonged to the members of the gang. They waited for a while, but the bikes' owners did not appear, so they looked through the mall and then went back to the parking bays and continued to wait.

23. Shortly after 6 pm, the two victims left the mall and walked towards the motorcycle parking bay. They were wearing Finks t-shirts.

24. Mr Ngata called out to them and said "Did you know that this is Rebel territory?". One of the victims "bridged up" to Mr Ngata, at which point Mr Ngata hit him with his left hand so that he fell over. Mr Ngata and the three co-accused then attacked the two victims and, when one of them tried to run, one of the co-accused grabbed him on the stairs and punched him so that he fell back down the stairs and continued to punch him. They then pulled the t-shirts off them and left the scene. They later burnt the t-shirts.

25. Mr Ngata was arrested on 23 October 2014. He was granted bail in the Magistrates Court on 9 January 2015, but was arrested for a breach of bail on 12 February 2015. Although he subsequently applied for bail, bail was refused and he has remained in custody since that time.

26. His co-offenders have pleaded not guilty and their trials are listed to commence on 29 February 2016.

27. I had a helpful Pre-Sentence Report and Mr Ngata gave evidence before me. As a result, I make the following findings.

28. Mr Ngata was born 37 years ago in New Zealand. He spent some of his childhood in Tonga before moving to Australia. He had a good relationship with his parents, though he was mostly raised by his grandparents. His parents still live in New Zealand. He has a good relationship with them and has phone contact with them from time to time. He has nine siblings and enjoys positive relations with them. One of them was in court during the sentencing hearing. He is a middle child among his siblings.

29. He normally resides in Queanbeyan and had been in a long term relationship before entering gaol. It appears that the relationship terminated when he went into custody, but he has reconciled with his partner.

30. Mr Ngata completed education partly in Tonga and partly in New Zealand and left in Year 12; he has subsequently completed qualifications in construction. He has also completed a personal training course.

31. He worked in unskilled jobs after leaving school, in a factory and on a farm. He came to Australia when he was 20 to play rugby league. He completed the season and worked in Griffith, New South Wales, while playing. When the season finished, most of the players returned to New Zealand, but he went to Sydney and obtained work in a factory, assembling furniture.

32. He was then recruited to play rugby in Canberra and has been in the Canberra area ever since. He played for various clubs for a number of years, working in various jobs at the same time. He last played football in 2009.

33. He is currently completing a business studies course through Campbell Page, an employment and training service. Prior to being arrested, he worked as a personal trainer with his partner, which explains the personal training course. He plans to return to that work when leaving custody.

34. He has four children by a previous relationship, though he has an amicable relationship with his former partner.

35. Mr Ngata started using alcohol at age 24 and, from time to time, drinks to intoxication.

36. Mr Ngata commenced using illicit substances when he was 25. He used various drugs and fluctuated between recreational use and habitual use until he was about 30. At that time, his intake decreased to recreational use only and he has recently ceased all use and remains abstinent.

37. Mr Ngata agreed with the Statement of Facts but offered to the author of the Pre-Sentence Report justifications for his actions because of his role within the motorcycle club which required him to undertake the offence. It was said that he offered limited insight into the offences. He was able to demonstrate some empathy towards the victims but appeared unable to identify the possible consequences his actions may have had on other members of the public.

38. Although the time of the offences was around 5 pm, it was on a Saturday when it is likely that there were members of the public around. The CCTV footage does not, however, show many members of the public around, although there are some members shown. Nevertheless, such incidents in public are generally regarded as more serious.

39. I said in Grimshaw v Mann [2013] ACTSC 189 at [51]:

... intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [at [30], Ludeman v The Queen [2010] VSCA 333; (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards at [23], Shoard v Van Der Zanden at [41].

40. Mr Ngata's attitude to the offence as noted in a Pre-Sentence Report, however, needs to be put into some context, which is perhaps more current than was available to the author of the Pre-Sentence Report.

41. Mr Ngata has now resigned from all offices in the Rebels gang and has undertaken to give evidence against his co-accused in their upcoming trials and expects to be called to do so.

42. This is, of course, a very significant matter relating to remorse, including the insight which is a part of that and which, together with the matters mentioned in the Pre-Sentence Report, becomes very relevant.

43. Mr Ngata has a very long and serious criminal history, including a significant number of terms of imprisonment.

44. Having said that, however, of the 23 offences of which he has been found guilty, 16 are traffic offences. Many of those, nevertheless, were the more serious offences of driving whilst disqualified which ultimately attracted prison sentences from time to time.

45. What is perhaps more worrying is that, perhaps because of his involvement with the Rebels Gang, his most recent offences have been very serious, involving two offences of forcible confinement and one offence of kidnapping, resulting in severe sentences of imprisonment. That record denies Mr Ngata much leniency. When released from prison, he plans to return to Queanbeyan and look for employment.

46. There is no doubt that the offence of aggravated robbery is a very serious one, the maximum prescribed penalties show that, but the serious attack on our community that such an offence constitutes is also evidence of that. Ordinarily, a lengthy term of imprisonment would be imposed for such an offence. In this case, the three co-accused engaged in a vicious attack of some temporal significance.

47. There was no particular planning involved in the offence. Indeed, the whole of the episode was captured on CCTV.

48. As has been explained in Roberts, Lewis and McVean (1994) 73 A Crim R 306, such an offence is to be regarded as an offence of the utmost gravity and, except in most exceptional circumstances, is to be punished by a term of full-time imprisonment.

49. The offence here remains a serious one, but there are relevant factors to take into account. It was committed in a public place, to which I have already referred.

50. The value of the property taken was low, however, and no weapon was used. The violence which is shown on the CCTV consisted of Mr Ngata grabbing the victim and delivering two punches.

51. The offences were targeted, that is to say, the offences were not committed on a random member of the public, but that is moderated by the fact that this was part of an inter-gang rivalry which includes violence that cannot be tolerated and spills over into the community.

52. The CCTV also shows that Mr Ngata, when taking the t-shirts from the victim, appears to have taken one of the victim's wallet but, as he leaves, throws that back to him.

53. Nevertheless, the offence was a serious offence, amounting as it did to an unprovoked bashing because of a perceived impropriety of the entry of the victims into so-called Rebels territory, notwithstanding that the victims were perfectly entitled to be in Canberra and at the Belconnen Mall.

54. I did not have a victim impact statement and so I did not have any evidence about the extent of the injuries suffered by the victims. Mr Ngata is a big man and no doubt, if he was applying significant force, there would be real injury to a victim, but I cannot make a finding about that at this stage.

55. There is much to be said for encouraging people to provide assistance to ensure the protection of a community by the prosecution and the punishment of offenders. Indeed, in R v Cartwright (1989) 17 NSWLR 243 at 252, Hunt and Badgery-Parker JJ described it to be "clearly in the public interest". Often that requires assistance from persons who may have been involved in the offence, to provide them with either immunity or some recognition of their assistance with the authorities is important and Mr Ngata is entitled to receive the benefit of some significance from that. That is now recognised in s 36 of the Crimes (Sentencing) Act.

56. It has been accepted as a principle of sentencing that leniency is extended to those who give evidence against other offenders. In the High Court, Gleeson CJ explained in York v The Queen (2005) 225 CLR 466 at 468; [3]:

It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released.

57. In R v Cartwright at 252-3, Hunt and Badgery-Parker JJ set out some of the relevant principles which I might briefly summarise from that case and others as follows:

(1) An appropriate reward for providing such assistance should be given to encourage the assistance to be provided.

(2) The motive of the offender providing the assistance is irrelevant.

(3) Full and frank cooperation is what is required and which should be encouraged.

(4) The extent of the discount depends on the willingness with which the disclosure is made.

(5) No discount should be given if the disclosure is tailored to give only what is already known.

(6) A substantial discount will not be given unless full disclosure of all that the offender knows is given.

(7) Greater leniency may be given where the offender shows genuine remorse and contrition, but that is a function of ordinary sentencing principles and is not required for this discount.

(8) The discount should be given for genuine cooperation whether or not the disclosure turns out to be actually effective in assisting the authorities.

(9) The information disclosed must be true. No discount, of course, is to be given for false information.

(10) The discount is not lost if the authorities ultimately do not act on the information.

(11) That a jury might or does reject the evidence of an offender who has assisted authorities does not deny the offender a discount.

(12) Part of the discount is offered to compensate an offender who makes a disclosure for the risk which he or she may face within a prison environment following the disclosure.

58. The discount given is often combined with a discount for a plea of guilty. In New South Wales, discounts of between 25 per cent and 50 per cent have been given. A discount in excess of 50 per cent is a truly exceptional discount, as pointed out by Bell J, with whom Sully and Hoeben JJ agreed, in T v R [2007] NSWCCA 62 at [23]. Where there is no risk in a prison environment, it has been suggested that a discount in excess of 40 per cent is not appropriate. See R v Sukkar [2006] NSWCCA 92 at [4]. In this Court, Murrell CJ in R v Hodge [2015] ACTSC 214 gave a discount of 40 per cent.

59. It is necessary for me to identify the value of the significance of the co-operation in terms of the sentence so that, if Mr Ngata does not provide the assistance as agreed, he can be resentenced. See s 36 of the Crimes (Sentencing) Act.

60. In my view, having read Mr Ngata's interview with police, he has made full and frank disclosures and has willingly done so and he has undertaken to give evidence. Despite the CCTV, the Crown's case against the accused is hampered by the fact that the victims have not cooperated, thus Mr Ngata's evidence may be very significant.

61. I consider that a discount of 40 per cent is appropriate.

62. I will take into account the offence of aggravated robbery which is on the list of additional offences under Pt 4.4 of the Crimes (Sentencing) Act. I have regard to what the Court of Appeal said in R v Campbell [2010] ACTCA 20 at [46]- [50] and will follow the principles set out there as to how that offence should be taken into account.

63. In this offence, the two charges related to the two victims, one each, and while often there will be a case for making the penalty concurrent, it does not necessarily result in that.

64. Nevertheless, I am not able to impose a greater sentence than that for which Mr Ngata should be punished for the offence to which he has pleaded guilty.

65. I take into account the purposes of sentencing, as set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence must be of significant importance. Nevertheless, Mr Ngata's intention to reform, as evidenced by his resignation from the Rebels Outlaw Motorcycle Gang and his agreement to give evidence against his co-accused, is a significant factor and his rehabilitation as so evidenced ought to be recognised and reinforced.

66. I take into account his plea of guilty, which was not entered at an early stage and is a fairly late plea, but it is worthy of recognition for the contribution it makes to the facilitation of justice.

67. I have regard to the objective seriousness of the offence as I have described above.

68. Comparable sentences or decisions from which principles can be gained were not cited to me. I am, of course, bound by the decisions of the Court of Appeal, though, as pointed out in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57], the sentence imposed by a court gives rise to no binding precedent. I can discern principles and approaches as articulated in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at 73; [38], 74; [40]-[41].

69. Accordingly, I have had regard to Allred v The Queen [2015] ACTCA 21; (2015) 10 ACTLR 325, Miles v The Queen [2014] ACTCA 41, Slater v The Queen [2014] ACTCA 33, R v Flowers [2014] ACTCA 13, Munro v The Queen [2014] ACTCA 11, Taylor v The Queen [2014] ACTCA 9, Islam v The Queen [2014] ACTCA 2, Auld v The Queen [2013] ACTCA 21, Zocchi v The Queen [2013] ACTCA 12, Pavicevic v The Queen [2010] ACTCA 25, R v Robertson [2010] ACTCA 19; 174 ACTR 32 and Murphy v The Queen [2005] ACTCA 43.

70. I take into account the factors set out in s 33 of the Crimes (Sentencing) Act. As far as I know them they are set out above.

71. I also take into account Mr Ngata's assistance to the authorities as I have also described it above.

72. Mr Ngata has been assessed as suitable for a community work condition to a Good Behaviour Order and to serve a term of imprisonment by periodic detention. I do not consider either of these sentences as appropriate given the seriousness of the offence. I consider that no sentence other than a period of full-time imprisonment is appropriate.

2. I sentence you to three years imprisonment to commence on 25 November 2014 to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to three years and seven months imprisonment.

3. I have reduced the sentence by 29 months to take account of your offer of assistance to the authorities and giving evidence in the trial of your accused.

4. I set a non-parole period of 18 months to begin on 25 November 2014 and to end on 24 May 2016.

5. I dismiss the charges of affray and causing harm while participating in an illegal group.

I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.