R v Mailau - [2018] ACTSC 187

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mailau
Citation:	[2018] ACTSC 187
Hearing Date:	22 May 2018
DecisionDate:	22 May 2018
Before:	Burns J
Decision:	See [17]-[19]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand accompanied by a threat – objective seriousness – conditional liberty – weapon – criminal history – Pre-Sentence Report – specific deterrence – general deterrence – driving whilst suspended – imprisonment – disqualification from holding or obtaining a licence
Legislation Cited:	Crimes Act 1900 (ACT) s 32(2)(a)
Parties:	The Queen (Crown) Tomasi Mailau (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr D Hoitink (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 301 of 2017; SCC 302 of 2017

Burns J:

Tomasi Mailau, you appear before me today for sentence with respect to one offence of making a demand accompanied by a threat pursuant to s 32(2)(a) of the Crimes Act 1900 (ACT).

The Statement of Facts states that, on 8 April 2017, you entered a café located in Griffith in the ACT. Once inside, you approached a table in the rear of the café where the victim was seated. You were not known to the victim. You spoke to the victim and told him that he owed a lot of people money, and specified this amount as being “50 grand”. During the course of the discussion, you had one of your hands inside a small light‑coloured tartan satchel. You said to the victim, "I'll knee cap you now," before you moved your hand out of the satchel holding what appeared to be the butt of a firearm before asking, "Do you want me to get this out?" The victim agreed to pay the money.

You then walked out of the café, waited outside for some time before departing in your vehicle. I should note that, at the time, that you were a person whose licence had been suspended for failure to pay parking infringements.

The maximum penalty for the offence of making a demand accompanied by a threat, contrary to s 32(2)(a) of the Crimes Act 1900 (ACT) is 10 years' imprisonment, a fine or both.

In assessing the objective seriousness of this offence, I take into account the fact that you were on conditional liberty at that time. In that regard, I note that on 8 March 2017 at the Downing Centre in New South Wales, you were sentenced for offences of stalking and also using an offensive carriage service to threaten serious harm. On the first matter of stalking, you were placed on a bond to be of good behaviour for a period of 18 months. On the second offence, you were further placed on a recognizance to be of good behaviour for a period of 18 months. You were subject to those orders at the time that you committed the present offence.

I also take into account that you had with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mailau

Details

AGLC: R v Mailau [2018] ACTSC 187
Case: [2018] ACTSC 187
Decision Date: 22 May 2018

CaseChat Overview and Summary

In the case of R v Mailau, the defendant was charged with a number of offences including making a demand accompanied by a threat, driving while disqualified, and carrying a weapon. The matter was heard in the Supreme Court of Victoria. The defendant pleaded guilty to the charges and the court was required to determine an appropriate sentence.

The court had to consider the objective seriousness of the offences, the defendant’s criminal history, and the need for specific and general deterrence. The court also considered the defendant’s personal circumstances, including his employment and family responsibilities, as well as the recommendations contained in the pre-sentence report. In addition, the court had to consider the appropriate balance between conditional liberty and imprisonment, as well as the need for disqualification from holding or obtaining a licence.

The court determined that the objective seriousness of the offences warranted a custodial sentence. However, the court also considered the defendant’s personal circumstances and the potential impact of imprisonment on his employment and family responsibilities. The court ultimately decided that a sentence of imprisonment was necessary to achieve the aims of specific and general deterrence, but that a period of conditional liberty was appropriate in this case. The court also ordered that the defendant be disqualified from holding or obtaining a licence for a period of time.

The court ordered that the defendant be imprisoned for a period of six months, with a non-parole period of four months. The defendant was also disqualified from holding or obtaining a licence for a period of two years. The court further ordered that the defendant be released on parole after serving two months of his sentence, subject to certain conditions.

Orders

Orders of the court

See [17]-[19]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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