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…