R v Kaufusi

[2022] NSWDC 564

District Court

New South Wales

Medium Neutral Citation:

R v Kaufusi [2022] NSWDC 564

Hearing dates:

Tuesday 13 September 2022

Date of orders:

Tuesday 13 September 2022

Decision date:

13 September 2022

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

The offender is convicted.

Sentenced to a Community Corrections Order for a period of 2 years.

Catchwords:

CRIME — Complicity — Accessory after the fact — Serious Indictable offence — Enter dwelling house with intent to intimidate — Principle offender was armed with a machete — Offender drove principle offender away from scene of crime in vehicle — Offender was 20 at time of offence — Offender did not initially have knowledge of the principle offenders intentions to commit principle offence — Objective seriousness toward the bottom of the range — Good prospects of rehabilitation — Evidence of offenders remorse and contrition.

Legislation Cited:

Crimes Act 1900 (NSW): s 112(2)

Category:

Sentence

Parties:

Regina (The Crown)
Jimmy Kaufusi (The Offender)

Representation:

Counsel:
Mr. D. Provera (The Offender)

Solicitors:
Ms. A. Chauvet (The Crown)
Mr. S. Talty (The Offender)

File Number(s):

2021/00118358

Judgment

1. HER HONOUR: The offender is before the Court for sentence following his plea of guilty in the Local Court to a charge of being an accessory after the fact to an offence of enter a dwelling house with intent to intimidate the occupants of that house on 12 December 2020. The principal offence was charged against a co-offender Rongokarai Martin Wade as an offence contrary to s 112(2) of the Crimes Act 1900 (NSW). The offender’s liability as an accessory after the fact is pursuant to s 350 of that Act. The maximum penalty is 5 years imprisonment.
    

2. The plea of guilty, as I said, was entered in the Local Court following extensive negotiations pursuant to the Early Appropriate Guilty Plea scheme (“EAGP scheme”). The plea was entered as I understand it, in February 2022. The parties accept that in the circumstances the Court should regard the plea of guilty as having been entered at the earliest available opportunity to the charge for which I now sentence him, and as such, pursuant to the provisions of the EAGP scheme, he is entitled to a discount which if enumerated would be 25% discount from what would otherwise be the appropriate penalty.
    

3. In fact, it was initially part of the negotiated agreement that the matter would be disposed of summarily. The matter did go to a magistrate for sentence hearing. The matter was before the Local Court on 17 March 2022. The matter proceeded for a period of time including an adjournment for judgment to be delivered and during the intervening period, it was recognised by both parties that the matter was strictly indictable, and the proceedings were terminated in the Local Court and the offender was then committed for sentence to this Court. He is taken to have pleaded guilty at the first available opportunity. The offender was then committed for sentence to this Court. The plea of guilty was maintained.
    

4. In the circumstances, the parties agree, and I accept, that he is entitled to a full discount of 25% or the maximum discount in any event that would be permissible under the EAGP scheme.
    

5. The offence in relation to which he was an accessory after the fact is an extremely serious offence. There is a signed statement of Agreed Facts before the Court which in large part sets out the principal offence. The background to it would appear to have been some business agreement between individuals named at p 1 of the Agreed Facts in which one of the parties believed the other owed him a significant amount of money. It would appear at least that the principal offence occurred in the context of an attempt to recover what was thought to be a debt, arising from that business dispute. That involved the use of two other individuals who are effectively co-offenders, one of whom has been sentenced. He is named as Rongokarai Martin Wade, the principal offender.
    

6. The principal offence occurred on 12 December 2020. The offender before me, I accept, drove Mr Martin Wade and another person who has subsequently been named Paxton, also known as Ronan, from some unknown place to Newport. The offender has given evidence on the sentence proceedings, and I accept from that evidence and also the nature of the charge, that he had been asked by one of those two persons, well probably not the person known as Paxton who was his friend, to drive the other person Martin Wade there. He believed that he was assisting to do so to collect something. He has given evidence which I accept that he understood he was approached to do so because he had access to a car and that not everybody else in their group did.
    

7. The so-called facts indicate that on the way he was stopped by police for a traffic infringement. That particular fact is not necessary. That is evidence not fact. On that morning, the victims of the principal offence were at home. They were packing to go away. The offender had arrived with the other two people around 11.30am and parked in the street. The other two people got out of the car and the offender stayed inside the car.
    

8. The two co-offenders were outside the house for a while and then knocked on the door. The female victim went to the door and the male stayed in the kitchen. Martin Wade was at the door and the other male was behind him. Martin Wade was carrying a black machete and started to walk towards the female, followed by the other person. The female turned to run away but Martin Wade grabbed her by the shoulder. There was a struggle. During the course of that struggle her left index finger was cut by the machete and the wound was bleeding, ultimately requiring four sutures.
    

9. Martin Wade grabbed her right arm and took her into the kitchen where her husband, the male victim, was. Both of the principal offenders went into the kitchen and told the male victim to put down a knife that he had been using to help pack their goods. The second person then held that knife against his neck. They were detained for a period of time. The female victim was then taken by Martin Wade into the kitchen. He was still holding the machete. She was told to sit down. It seems that both offenders appeared nervous. She was told to keep her hands on the kitchen bench, and it was clear that her finger was bleeding. She was told by the co-offenders to keep her hands on the bench because they needed to take a photo of her.
    

10. It was then that one of the intruders told the victims what, was apparently the purpose of their visit, alleging that they owed a construction company two million dollars. A knife was still being held to the male victim’s neck when this was occurring. He was told to take off his watch and did so. It was apparently valued at $2,500. It was taken.
     

11. Martin Wade demanded that the female victim put her hands on the bench and threatened that if they called the police, he would cut off her fingers. He was holding a machete up high at the time. He also threatened to cut off her fingers if they did not pay the money they claimed was owed.
     

12. The male victim tried to calm the matter down, to an extent successfully. They then told both the victims, to go into a room at the rear. Each of the offenders were still armed, including holding a knife to the male victim’s neck. The female victim and Martin Wade got into a small scuffle at this point, whilst he was holding the machete towards her neck. They were both ushered into the en suite and threatened that if they call the police, they would come back to kill them.
     

13. The following was also said by one of the offenders. “No hard feelings, I have a family too. I have to do what I have to do”. They pulled the door to the en suite shut and then left and went back to the car where the offender before me remained seated in the front driver seat. They were seen running by neighbours and Martin Wade was carrying a machete.
     

14. The offence to which the offender has pleaded is accessory after the fact of entering a dwelling house and committing a serious indictable offence of intimidation. The objective circumstances of his offending I accept arise from the time that the co-offenders returned to the vehicle. It is common ground between the Crown and those on behalf of the offender that the Crown cannot prove that the offender had any knowledge of the intention of the co-offenders at the time they entered the house nor had any knowledge of what they had done before they returned to the car.
     

15. I accept both from the Agreed Facts and the evidence given by the offender that he was not aware that their intention was to behave as they did, and he was not aware that Mr Martin Wade was armed with a machete. He was aware of that, however, once they returned to the car. They both got inside. Martin Wade was in possession of the machete, and they asked the offender to drive away. It was at that stage that he was informed by one or other of the two principal offenders that they had gone into an address near where he was parked in order to intimidate the occupant whilst they were jointly armed with a machete.
     

16. He drove away quickly and in doing so, assisted Mr Martin Wade and the person referred to as the unknown offender, after the event, knowing that they had committed the offence which is the principal offence. His involvement as an accessory after the fact went somewhat further. He drove away.
     

17. Police attended the address in Newport shortly after the offences occurred on 12 December 2020. The vehicle that the offender had been driving obviously had been identified in the interim period and was shown to be registered to a member of his family. He was driving it with consent.
     

18. On 9 April 2021, police attended his workplace and told the offender that the vehicle would be seized and searched. On April 2021 they placed a demand on the registered owner of the vehicle he was driving, who I understand to be his sister, and she confirmed that he was driving her car with her consent that day. The police then obtained warrants to intercept his telephone service and there were conversations recorded between him and another person in which he indicated that he had been present and to a large extent made what would amount to admissions of having committed the offence for which he now stands for sentence. His premises were searched on 28 April 2021, and he was arrested at his workplace.
     

19. He participated in an electronically recorded interview in which he told some lies. He denied he had been to Newport and made some comments about the identity of the person Martin Wade, but not in a way that in fact involved his confirming that that person had been present in the vehicle. He was given a form of demand but refused to answer. That was repeated on 13 September 2021, in circumstances where he agreed to participate in a further form of demand and as I understand the evidence, identified that he was driving on 12 December 2020 and had one passenger who he named as Paxton, also known as Rowan and gave an address for that person.
     

20. There has been evidence given today, and it was suggested to the offender that in that form of demand he had tried to hide the identity of Martin Wade. I am not satisfied that that has been established. I accept more probably than not, he was somewhat confused about who he was been requested to identify, particularly in circumstances where it would appear that Martin Wade was arrested at the same time and was in the cells at the police station at the same time that he was arrested. More probably than not, he was of the view that the police knew who Martin Wade was and he was not required to provide any further information about him. It seems to me nothing turns on that.
     

21. He remained in custody bail refused for a period of time after his arrest on 28 April 2021. He was apparently granted bail on 9 August 2021. He, therefore, spent 3 months and 13 days in custody in relation to this matter.
     

22. Turning to the objective criminality of his offending. The first matter that must be noted is that the principal offence itself is extremely serious. It is a grave act of violence committed by the two co-offenders against both of the victims. The offender before me, however, does not stand for sentence for those offences. He is before the Court, having acted as an accessory after the fact.
     

23. His role as accessory was the following: He drove the offenders away after the offence and therefore, assisted in their avoiding detection and identification at least on the day and continued to an extent at least, thereafter, by refusing to disclose the identity of both of the passengers.
     

24. He has given evidence today adopting the history given to a psychologist and I accept by combination of his evidence today and the history given to the psychologist that he, at the time, made a very poor choice to assist the co-offenders to flee the scene by driving them away. He agreed to take them to Newport without any prior knowledge that they were likely to commit this or any other offences. He did not know they were armed when they entered. He only became aware of the general nature of the offending when they came back to the car and that clearly it involved one of them being armed with a machete but he, I accept, was never aware of the specific details of the offending until he saw the police facts statement in due course.
     

25. He was 20 at the time. He made a very poor choice not to distance himself from them at the time he became aware of what they had done. I accept that that was to an extent motivated by some fear of them. I accept the evidence that he has given which is corroborated by at least one of the intercepted telephone conversations that in the trip to Newport the two co-offenders had been discussing with each other the fact that they had bashed somebody who had once not done specifically as requested when driving them somewhere and that whilst this was not a threat directed to him, he understood it to be a statement of indirect threat, that in part motivated his decision to commit the offence.
     

26. The other part, I accept, is because he was 20. At the time just did not have enough moral backbone to stand up to two men around about the same age who were friends, so to stand up to two friends and tell them that they were doing the wrong thing, and that he was not prepared to go along with it. That is what he ought to have done, but he did not do so. It is not excusable, but it is understandable, and it is, I accept, out of character.
     

27. The fact that he then did not disclose their identities to police also in my view, to an extent was motivated a little by fear of them or repercussions. He has given evidence in court today that he is prepared to provide a statement to police in relation to the unknown offender who he has named in court. There has been some dispute about the extent to which he has done so already. I cannot resolve that dispute and I do not propose to. He has said today he is prepared to assist the police with a statement in relation to that person and whilst I do not take that into account in assessing any assistance, nonetheless, it is some evidence of genuine remorse and contrition and rehabilitation.
     

28. The police can, if they wish, take up that offer and then it will be a matter for him what he does. I accept more probably than not, he is genuine in his offer, and he will assist the police where he can. I will not, however, be giving effect to any additional discount for matters referred to in s 23 on the basis of that evidence because the evidence is simply not in a sufficient state for me to make definitive findings about it.
     

29. The co-offender Martin Wade was as I have said was arrested at around about the same time. He was charged with two very serious offences, one being the principal offence here, namely, entering the premises with the intention of committing a serious indictable offence, namely, intimidation. It carried a maximum penalty of 14 years imprisonment.
     

30. He also faced the offence of especially aggravated detain for advantage in company which attracted a maximum penalty of 25 years imprisonment. I have had the benefit of sentence judgment of Judge Shead who sentenced Martin Wade on 22 July 2022. The findings made are lengthy and except for the fact that they set out the circumstances for the principal offending, have little connection to the offender before me. There was nothing in the facts before Her Honour that was any different so far as this offender’s role is concerned to the facts that are before me today. His role, it would appear, are set out in para 27 of her Honour’s sentence judgment.
     

31. Mr Martin Wade was sentenced by her Honour to an aggregate sentence of 6 years and for the offence which is the principal offence her. It was indicated that an appropriate sentence was 2 years and 2 months. There are no issues of parity, however, in this case because of the very different, not only the very different role played by this offender, but the different nature of the offence.
     

32. He comes to court with no prior criminal convictions. He is now 21 years of age. I accept as I have said that this offending was very much out of character for him. He is employed full-time as a concrete pumping assistant, and he works six days a week. There are references before the Court including from his fiancée, her father and a pastor of his church. I accept that he contributes in a meaningful way to the community. He clearly was spending time with people at the time who did not hold the same values that he holds, and I accept that he has indicated to the psychologist and to the Court he now recognises that, and he no longer keeps company with those people.
     

33. He is well supported in the community. His mother is present in court as is his fiancée and her father. His prospects of rehabilitation are greatly improved by the fact that he has that community connection. Each of his referees indicates a belief that he is never likely to offend in the future, and I accept more probably than not, this is a reasonable assessment of his future.
     

34. He and his fiancée are expecting a child in February and his desire to remain free of the law is also motivated by a need that he perceives to be the best father he could possibly be.
     

35. He has expressed remorse and contrition which I accept to be genuine. He is willing to undertake whatever intervention is thought necessary. The psychological report assesses him as suffering from something referred to as non-specific psychosocial distress. Given that he spent three and a half months in custody and at least faced the possibility of a lengthier prison term as a result of this offence, that is hardly surprising.
     

36. He is diagnosed as suffering from a general anxiety disorder and an adjustment disorder with anxiety, characterised by mild depressive symptoms, anxiety symptoms and traumatic stress symptoms. He is willing to undertake whatever is needed to ensure that if this in fact was an ongoing condition at the time he committed this offence, it is not likely to reoccur. He has attempted to engage in some psychological treatment or counselling which has not yet commenced because of issues in relation to waiting lists and the need to have it mediated by Medicare and the like. Whether or not he really needs psychological assistance, it seems to me, may well be a moot point.
     

37. He is assessed by Community Corrections as being a low risk of reoffending to the extent that even if the Court ordered supervision, Community Corrections will not require him to participate in face-to-face reporting. I accept their opinion that he is a low risk of reoffending.
     

38. The objective seriousness is towards the bottom of the range. The Crown quite fairly has agreed that the threshold for imprisonment is not reached in this case. It was the same stance the Crown took in the Local Court when the matter was to be dealt with summarily. I accept that to be the case. The relevant sentence as an alternative to imprisonment is a Community Corrections Order (“CCO”) which in my view is the appropriate sentence.
     

1. I should indicate that the offence to which the offender has pleaded is the offence of being an accessory after the fact of aggravated enter dwelling with intent to commit a serious indictable offence, namely intimidation and the circumstances of aggravation being that one of the two co-offenders was armed with an offensive weapon, namely a machete at the time the principal offence was committed. I had overlooked making it clear that that was the precise nature of the offence to which he pleaded at the time. Nonetheless, despite that, it is still the case that the threshold of imprisonment has not been reached. The alternative is a CCO. I will be setting that for a period of two years. The standard conditions are sufficient.
    

2. I will also order, as an additional condition, supervision. It is to be noted that the supervision is not likely to be actually put into effect because of the assessment of him as being a low risk but nonetheless but it seems to me appropriate that to an extent at least there should be an obligation to accept supervision if that is sought by Community Corrections.
    

3. Again, I indicate that the 25% discount for the plea of guilty. The offender is convicted. I have determined this sentence also taking into account the fact that he has already spent 3 months and 13 days in custody bail refused which is a significant period of time and is amongst the reasons why it seems to me that a term of 2 years is sufficient by way of CCO.
    

4. For those reasons then I make the following formal orders:
    

1. The offender is convicted.

2. Sentenced to a CCO for a period of 2 years to commence today.

1. To be subject to the standard conditions.

2. Additional condition that he accepts the supervision and guidance from Community Corrections for as long as deemed necessary by them.

3. He is to report to the Burwood Community Corrections office no later than Wednesday 21 September 2022 to enable the supervision to be commenced.
    

**********

Decision last updated: 17 November 2022