R v Kivalu

[2016] ACTSC 138

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kivalu

Citation:

[2016] ACTSC 138

Hearing Date:

25 May 2016

DecisionDate:

16 June 2016

Before:

Burns J

Decision:

See [25]-[29]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – blackmail – plea of guilty – general deterrence significant factor – good prospects for rehabilitation – suspended sentence – Good Behaviour Order imposed.

Legislation Cited:

Criminal Code 2002 (ACT) s 342

Work Health and Safety Act 2011 (ACT)

Parties:

The Queen (Crown)

Halafihi Kivalu (Offender)

Representation:

Counsel

Mr A Williamson (Crown)

Mr J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Rachel Bird & Co (Offender)

File Number:

SCC 225 of 2015

BURNS J:

1. Halafihi Kivalu, on 10 March this year you entered pleas of guilty to two counts of blackmail contrary to s 342 of the Criminal Code 2002 (ACT) in this Court. Each offence of blackmail is punishable by 14 years imprisonment, 1400 penalty units, or both.

The facts

1. At the time of these offences, you were an organiser for the Construction, Forestry, Mining and Energy Union (the CFMEU). In that role you were responsible for dealing with grievances raised by union members, putting pressure on employers to enter into enterprise agreements with the CFMEU, ensuring that all workers on large commercial construction sites were members of the CFMEU and exercising powers of entry onto a work site pursuant to Part 7 of the Work Health and Safety Act 2011 (ACT). The complainant, Mr Elias Taleb, was a director of Class 1 Form Pty Ltd; a company that provides scaffolding and formwork services. He had a major financial stake in that company.

1. A lengthy Agreed Statement of Facts was tendered at the sentence hearing. I will not now recite the facts, but I will provide a brief summary. With respect to Count 1, you were aware that Class 1 Form Pty Ltd was a bidder to provide services on a building project in Yarralumla. You approached Mr Taleb and demanded $50,000 from him. You said that if he paid the $50,000 you would guarantee that his company would be the successful bidder, but if he did not pay you would make threats to the project's builder to disrupt the site if Mr Taleb's company was awarded the contract. Mr Taleb agreed to make the payment, and the $50,000 was paid by instalments of $10,000 between June 2011 and March 2013.

1. With regard to Count 2, Mr Taleb was contacted by a builder in January 2013 with a view to Class 1 Form Pty Ltd undertaking work for the builder on a development project in Braddon. The builder inquired of Mr Taleb whether he was on good terms with the CFMEU as he did not want any unnecessary disruptions during the building process.

1. Mr Taleb informed the builder that all his workers were members of the CFMEU and this company had an enterprise agreement with the CFMEU. The builder asked Mr Taleb to provide a tender for the scaffolding and formwork for the development.

1. On or about 18 February 2013, Mr Taleb was informed that the tender was successful. Mr Taleb asked to sign the contract quickly before members of the CFMEU became aware and sought bribes. Mr Taleb was told that the contracts could be signed on 22 February 2013.

1. On 21 February 2013, demands were made that the company, Class 1 Form Pty Ltd, enter into another enterprise agreement with the CFMEU, despite the fact that it was already a party to such an agreement, which was not due to expire until 2015. Mr Taleb had telephone conversations with a number of senior officials of the CFMEU. He was ultimately informed that there was a new enterprise agreement which Canberra workers had agreed to, and Class 1 Form Pty Ltd would need to sign the new agreement. Mr Taleb signed the new agreement on behalf of his company.

1. In late October or early November 2013, the builder contacted Mr Taleb complaining that the CFMEU had been attending the building site and disingenuously raising safety issues and threatening to cause unwarranted disruption. Mr Taleb telephoned you to see what the issues were. You demanded money to sort out the problems, and a sum of $20,000 was agreed upon. This was paid to you in cash in late November 2013. The money was only paid because Mr Taleb feared continuing harassment by the CFMEU if he did not pay.

Pre-Sentence Report

1. A Pre‑Sentence Report was prepared for the sentence hearing. You are 39 years of age and you were born in Auckland, New Zealand. You are of Tongan heritage. You continue to enjoy positive relationships with your family, although your father and four siblings remain in Auckland. Your mother passed away in 2015. You grew up in difficult socio-economic circumstances, and you lived with your grandparents in Tonga between the ages of 11 and 14.

1. Following the completion of your formal education you moved to Utah in the United States of America, where you undertook missionary training required of a young man in the Mormon Church. You told the author of the Report that you remained an active member of the Mormon Church Community, although you have only recommenced being an active member in the past few years.

1. In 2001, you came to the Australian Capital Territory (ACT) to play Rugby League with a local team. Since arriving in the ACT you met your now wife, with whom you have two children aged six and three years old. You have been married for 10 years. You, your wife and two children reside in your current rental property and have done so for a period of months. You advised the author of the Report that the family have a mortgaged property in Queanbeyan, New South Wales which is currently leased.

1. After completing your secondary education and your religious training in Utah you derived some further income from playing Rugby League in the ACT and regional France. You then obtained employment in the security and construction industries before becoming an organiser in the CFMEU. You stated you remained in that position for 10 years until 2014, at which time your membership of the CFMEU was cancelled, with a subsequent loss of employment.

1. You told the author of the Report that it had been difficult to secure and maintain employment since losing that position. You indicated that recent employment opportunities had not presented a stable income. This has caused financial difficulty for the family and also considerable stress.

1. There are no alcohol or drug issues that need to be addressed. Similarly, you did not report any health issues that may be relevant either to your offending behaviour or to possible sentencing.

1. You are assessed as at medium to low risk of general reoffending. I note that the version of events which you gave to the author of the Pre‑Sentence Report tended to minimise your responsibility for involvement in these offences. However, I am satisfied that subsequently you have accepted full responsibility for your actions.

Character References

1. A number of testimonials were tendered during the sentence hearing. Mr Richard Makdessi, the General Manager of the VARI Group, wrote a letter stating that you had been employed by his company as a sales representative from 2014 until 2016. He speaks very highly of you as an employee. He speaks of you as a hardworking individual who knows how to get the job done quickly and effectively. He speaks of your superior communication skills and your ability to get on well with other people.

1. I take into account the contents of the letter from Fa'onetapu Takiari, the current president of the United Nesian Movement Inc. He speaks of the assistance that you have provided in organising a hurricane fundraiser for relief in Tonga. He speaks of you always being available to provide assistance to those in the community and also, particularly, helping youth in that Pacific community. He refers to you as a dear family man and friend of many. He says that you are a father figure and leader in the Pacific community, especially for the youth.

1. I also take into account the contents of the letter from Anthony Abel, who first met you in 2005 when he and his family  moved to Canberra. At that time he served as a bishop in the Woden ward of the Church of Jesus Christ of Latter Day Saints. He refers to you returning to activity in the congregation at that time and stated that you have continued to participate ever since.

1. He says that you have served as a teacher and adviser to the young men of the ward, and he found you to be an excellent mentor and adviser to those boys. He said that you quickly gained the trust and respect of those young men and the other leaders in that community. He said that in his dealings with you he has found you to be honest, hardworking, generous and considerate. I will take into account, without further mentioning the contents of the letter from Salesi Akauola.

1. I have given particular consideration to the letter which has been provided by your wife, which speaks of you being a committed family man who has a quite large extended family. You and your wife have 11 children between you, nine from previous relationships and two whom you share. You are responsible for helping to support your family, despite the fact that you have been in financial difficulty since losing your job at the CFMEU. Your wife speaks of the significant changes that have come about in your life since you lost that position. She says that whilst you are far from perfect you have strived very hard in the last few years to try and perfect your life so that you may become a better husband, father, son, brother, friend and neighbour to all that you come across.

(Further material redacted for legal reasons.)

Consideration

1. Objectively, the offences to which you have pleaded guilty to are serious offences. They involved quite large sums of money. It is, of course, a significant factor that the blackmail in each case was successful, in that you did, in fact, extract money from the victim. Such offences are difficult to detect, and therefore general deterrence is a relevant sentencing consideration. Such offences also have a flow-on effect into the community, as it is likely to result in services and goods becoming more expensive for consumers.

1. I take into account that these offences did not involve threats of violence, but they were serious nonetheless. I take into account your pleas of guilty with respect to these offences. They were not pleas at the earliest opportunity, but I accept that they reflect a degree of remorse and also had a significant utilitarian value. I will reduce by approximately 10 per cent the sentences that would otherwise have been appropriate.

1. I am satisfied that you are indeed truly remorseful for what you have done. Your actions since these offences occurred, some years ago now, have demonstrated your remorse. I am satisfied that you have excellent prospects for rehabilitation. Indeed, you have effectively rehabilitated yourself over the period of time since these offences occurred. I note that you spent six nights in custody with respect to these matters.

1. I am satisfied that sentences of imprisonment are the only appropriate sentences with respect to offences of this nature, and particularly bearing in mind the objective circumstances to which I have referred. However, in my opinion, the sentences which I will impose can be suspended and a Good Behaviour Order imposed, and that will be sufficient to satisfy the requirements of sentencing.

Sentence

1. On the first Count, I record a conviction, and you are sentenced to 21 months imprisonment, commencing on 10 June 2016 and expiring on 9 March 2018.

1. On the second Count, you are convicted and sentenced to 18 months imprisonment, commencing on 10 September 2017 and expiring on 9 March 2019.

1. I direct that those sentences are to be suspended forthwith.

1. There will be a Good Behaviour Order for the period commencing today, 16 June 2016 and expiring on 9 March 2019. It will be a requirement of that order that you are to accept the supervision of ACT Corrective Services for a period of 12 months, or such lesser period as deemed appropriate by your supervising officer.

1. I also make a reparation order in favour of Mr Elias Taleb in the sum of $70,000.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:

Date: 29 June 2016