R v Nassif

[2004] NSWCCA 443

CITATION:	Regina v Lagi [2004] NSWCCA 443
HEARING DATE(S):	03/12/04
JUDGMENT DATE:	8 December 2004
JUDGMENT OF:	Mason P at 1; Barr J at 2; Hoeben J at 3
DECISION:	Appeal against conviction dismissed.; Leave to appeal against severity of sentence granted, but appeal dismissed.
CATCHWORDS:	CRIMINAL LAW: - conviction appeal - use an offensive weapon in company with intent to prevent lawful apprehension - whether available on evidence - inconsistent verdicts - sentence appeal - whether parity principle observed.
LEGISLATION CITED:	Crimes Act 1900 Firearms Act 1996
CASES CITED:	Mackenzie v The Queen (1996) 190 CLR 348 R v Thompson & Houlton (2000) 40 NSWLR 383
PARTIES :	Crown - Respondent Meli Lagi - Appellant
FILE NUMBER(S):	CCA 2004/1740
COUNSEL:	R Toner SC - Appellant D Howard SC - Crown
SOLICITORS:	S Macedone - Appellant S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70234/02
LOWER COURT JUDICIAL OFFICER :	Wood CJ at CL

2004/1740

MASON P
BARR J
HOEBEN J

Wednesday, 8 December, 2004

REGINA v Meli LAGI

Judgment

1 MASON P: I agree with Hoeben J.

2 BARR J: I agree with Hoeben J.

3 HOEBEN J:

Offences and conviction appeal
The appellant and John Taufahema on 20 August 2003 were each indicted before his Honour Justice Wood, Chief Judge at Common Law, and a jury in the Supreme Court of New South Wales on the following counts.

Count 1 – That he on 27 March 2002 at Hillsdale in the State of NSW did murder Glen McEnallay.
(Sections 18 and 19A Crimes Act 1900 – maximum penalty imprisonment for life).

Count 2 (in the alternative to Count 1) that he on 27 March 2002 at Hillsdale in the State of NSW did, while in company use an offensive weapon with intent to prevent lawful apprehension.
(S33B(2) Crimes Act 1900 – maximum penalty imprisonment for 15 years.)

4 Each was indicted in relation to other counts to which pleas of guilty were entered in the course of the trial. These other counts are irrelevant to the conviction appeal and will be referred to in the sentence appeal.

5 It was always the Crown case that Sione Penisini was the person who fired the shots which killed Constable McEnallay. On 21 March 2003 he pleaded guilty to the murder of Constable McEnallay.

6 The Crown sought to establish the murder count against John Taufahema and the appellant upon two bases. The first was that the two accused had acted in a joint enterprise with Sione Penisini that, if faced with the possibility of being arrested, one of them would use a firearm with intent to prevent their arrest, and that the possibility was in the contemplation of the accused that in so using the firearm, the user would do so in such a way as to result in the death of or grievous bodily harm to the person attempting to arrest them.

7 The second basis relied upon by the Crown was felony/murder. This required that both the accused were present and encouraging and assisting Penisini to use his pistol, in company, for the purpose of deliberately shooting at Constable McEnallay with the intention of preventing their lawful arrest.

8 In relation to the alternative count under s33B(2), the Crown also relied upon two bases for making out its case. Firstly, that each accused was a party to a joint enterprise that if faced with the possibility of arrest, one of the persons in his company would use a pistol for the purpose, and with the intention, of preventing their lawful arrest, although not necessarily contemplating that it would be used in a way that would kill or cause serious bodily injury to another. Secondly, that each accused intentionally encouraged or assisted Penisini to use the weapon, knowing that he would do so with the intent of preventing their lawful arrest, although not necessarily expecting or contemplating that the result would be death or serious bodily injury of another.

9 Following a trial before Wood CJ at CL and a jury, John Taufahema was convicted of murder and the appellant was convicted under Count 2. The appellant appeals against his conviction under Count 2 on the basis that there was no evidence to distinguish any different factor which would play upon either himself or John Taufahema at the time that Penisini shot Constable McEnallay and that therefore there was an inconsistency between the appellant being convicted of the alternative count while being acquitted of Count 1 so that conviction under Count 2 cannot stand.

Factual background

10 At trial there was little dispute as to the facts. Significant admissions were made by both offenders in the course of the trial. The following facts would seem to be uncontroversial.

11 On 27 March 2002 Senior Constable McEnallay was driving an unmarked police patrol car in Bunnerong Road, Matraville. Near the intersection with Military Road he observed a green Holden Commodore sedan, registration No AJK 32M. The possible presence of this vehicle in the area had previously been reported to him by an off-duty police officer, Constable Deitrich, who had seen it at about 5.30 pm travelling at speed and somewhat erratically, in Botany Road, Matraville.

12 Senior Constable McEnallay asked for a vehicle check to be made and was advised that it had been reported as stolen. He followed the green Commodore in Botany Road and then right into Beauchamp Street. The two vehicles stopped at the lights controlling the intersection of Beauchamp Street and Denison Road. In the meantime he had asked for assistance from other vehicles, and had also requested the driver of a caged police vehicle, which was in the area, to drop back as he did not want the occupants of the green Commodore to be aware that they were being followed.

13 In Denison Street, at about 5:51:50 Senior Constable McEnallay activated his siren and lights announcing his pursuit of the green Commodore, which made a right hand turn at speed into Grace Campbell Crescent. On attempting this turn the vehicle struck the gutter, or a traffic island, and came to a stop at about 5:52:10, as a result of damage occasioned to a wheel, which effectively immobilised it.

14 At this stage Penisini, who was armed with a .38 Smith and Wesson revolver, exited the green Commodore and immediately fired five shots, in quick succession at the driver side window of the police vehicle which had come to a stop about 10 metres away. Senior Constable McEnallay, who had been unable in the time available to draw his own weapon, or to seek a position of safety, suffered gunshot wounds to the chest and head which led to his death, seven days later on 3 April 2002.

15 Penisini, along with the other occupants of the green Commodore, who included the appellant and John Taufahema, ran from the vehicle in an easterly direction, through some units in Neilson Avenue and Grace Campbell Crescent. On their way, Penisini dropped his revolver and a pouch containing a number of .45 calibre and .38 calibre cartridges, on the footpath outside 9 Grace Campbell Crescent. The appellant was seen to drop his weapon, a .38 Smith and Wesson revolver, in the garden of 12 Grace Campbell Crescent on his way to a residence at 5 Rhodes Street, where he managed to hide from the police, in a laundry, for several hours, before eventually making his way home. Before doing so, he exchanged his clothes for clothing which he found in the laundry. He was not arrested until 3 April.

16 John Taufahema and Penisini also made their way towards Rhodes Street. They were pursued on foot by Senior Constable Day and Constable Kolosque. While moving through the small area of park, which runs between the premises at 7 and 9 Grace Campbell Crescent respectively, and up a hill to Rhodes Street, John Taufahema presented his hand gun, a .38 Smith and Wesson five round revolver at Constables Day and Kolosque and threatened to shoot them if they did not back off.

17 Both officers maintained their pursuit. They had drawn their own service weapons and repeatedly warned Penisini and Taufahema to stop and to drop the revolver which Taufahema was holding.

18 When they reached Rhodes Street, Penisini and John Taufahema made their way north, still pursued by Constables Day and Kolosque. A motor vehicle driven by Lamia Kassis was observed to be slowing for a speed bump. John Taufahema made his way to the driver’s side of this vehicle and pointing his weapon at Ms Kassis instructed her to get out of the vehicle. She complied with his request. In the meantime, Penisini attempted to force his way into the front passenger seat.

19 At this point Constables Day and Kolosque caught up with the men and began to struggle with them. Senior Constable Day attempted to subdue Penisini and eventually did so, after hitting him over the head with his service pistol and spraying him with capsicum spray. Constable Kolosque fought with John Taufahema who was still holding his handgun and pointing it at the two officers. They struggled over the ignition key and at one stage Taufahema managed to get the vehicle into motion but it moved backwards striking a vehicle behind it.

20 Eventually John Taufahema was overpowered by Constable Kolosque with the assistance of Senior Constable Day who had come to his aid, although not before being struck on the head several times with the butt of a service weapon, and also being sprayed with capsicum spray.

21 In the meantime Penisini, who had been sitting for a while on a fence, no doubt still affected by the spray, had moved away from the vehicle into the park to the east of Rhodes Street. He was pursued by Senior Constable Day and with the assistance of Constable Rowbottom, who had also come to the scene, was arrested in that park. The revolver of John Taufahema was recovered from the vicinity of Ms Kassis’ vehicle.

22 For completeness it should be noted that the other occupant of the green Commodore was one Motekiaa Taufahema. He was apparently the driver of the vehicle. He also ran away from it when it became disabled. He was arrested in the rear yard of premises at 31 Rhodes Street moments after the arrest of John Taufahema and a .357 Magnum six-chamber revolver, which he was seen to drop in the garden of 33 Rhodes Street, was recovered in that location. There is otherwise no need to make further mention of Motekiaa Taufahema.

23 A search of the green Commodore revealed that it contained gloves, hats and an ice-hockey mask, items capable of being used as disguises. The weapons of the appellant and John Taufahema were fully loaded but had not been fired during the relevant events.

24 The other relevant evidence was that of Sese Tuiniua, who was a friend of the appellant. He was interviewed by Constable Martin on 22 May 2002 and an ERISP of that interview was obtained. An edited version of this ERISP was marked for identification 4 at the trial and a transcript of that edited ERISP was tendered in the appellant’s case. The transcript referred to a conversation between the appellant and Mr Tuiniua which took place late on the evening of 27 March 2002.

25 Included in the transcript was the following:

“A. Yep, yep, I go to Meli, what are you doin’? What are you doin’, mate. He goes, nothin’ man, nothin’. Like, like he sounded like shattered, you know, like he sounded like upset for some reason. …
A. Like he had, like he was almost crying you know, he was, he was just about to cry, yeah, like that upset, yeah. …
A. I asked him, I asked Meli, what’s wrong? And he said goes, and he said, and he said that, he, one of the boys just shot a copper. And, I said to him, who, who? And he goes, fuckin’ Penisini shot, shot, shot a fuckin’ copper. And I go, what happened, what happened? And he said that they, he said, well they copped a chase, they ended up losing it. He got out and, and they all started bolting and Penisini turned around and fired shots at the copper. And Meli looked around and seen Penisini shooting at the, at the coppers and the copper, I think. Yeah, and then I asked him if he was all right. He said, he didn’t say much, he said, yeah, yeah. And then after that I go, I asked him if he wanted to come up and get drugs from Redfern to, you know, to ease him. And he goes, no, and he, he just walked off upset.”

Ground of Appeal 1

26 The appellant relies upon the following ground of appeal in relation to his conviction.

(1) The verdict was inconsistent with that delivered against his co-accused John Taufahema and was in the circumstances:

(a) Unreasonable and/or

(b) Cannot be supported having regard to the evidence and/or

(c) In the circumstances is a miscarriage of justice.

27 The appellant relies essentially upon the statement of principle in Mackenzie v The Queen (1996) 190 CLR 348 at 367/8:

““Juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a Judge might find it difficult to reconcile them with the verdict which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a Judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by jury. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
We agree with these practical and sensible remarks.
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity of the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”
The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (state apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of a particular case.”

28 I do not understand the Crown to take issue with that statement of principle. The position of the Crown is that there is no inconsistency.

29 Factually the argument put on behalf of the appellant is simple. There was no direct evidence as to what agreement or understanding had been arrived at between the persons in the car at the point in time when Penisini fired his revolver at Constable McEnallay. There was no direct evidence as to any conversation between the occupants of the green Commodore prior to the shooting. If a jury was to reach a conclusion as to the state of mind of any of the occupants, it had do so by way of inference.

30 The appellant submits that there was nothing in his conduct or that of John Taufahema up to the point in time when Penisini fired his revolver at Constable McEnallay which would enable an inference to be drawn by the jury as to any difference in mental state between the appellant and John Taufahema. This would seem to be so. Were there no further evidence it would be difficult as a matter of logic to understand how the jury could distinguish between the respective mental states of the appellant and John Taufahema when the shooting took place.

31 The evidence, however, was not left in that state. There was evidence which related to the conduct of John Taufahema after the shooting from which it was open to the jury to draw an inference as to his mental state at the time when the shooting took place. That evidence can be summarised as follows:

(1) John Taufahema retained his revolver when he fled from the green Commodore whereas the appellant discarded his.

(2) John Taufahema pointed his revolver which he still had with him at the pursuing police officers and threatened to shoot them if they did not back off.

(3) At a later stage in the chase John Taufahema again pointed his revolver in the direction of Ms Kassis.

(4) There was the violent struggle in the vehicle of Ms Kassis which resulted in John Taufahema being disarmed.

This evidence was only admitted against John Taufahema.

32 It was also open to the jury to have regard to the evidence of Mr Tuiniua. If accepted, that evidence indicated a significant level of upset on the part of the appellant on the night of the shooting. That evidence could allow the inference that the shooting was unexpected and unwanted by the appellant.

33 The appellant’s response is that “It may well be that the jury was unduly influenced by the material relating to what happened involving Penisini and John Taufahema after the shooting of Constable McEnallay.” That does not solve the appellant’s difficulty.

34 If it was properly open to the jury to infer from the subsequent conduct of John Taufahema that at the time of the shooting his mental state was that if faced with the possibility of being arrested, one of the persons in the vehicle would use a firearm with intent to prevent that arrest and that he had in contemplation the possibility that in so using the firearm the shooter would do so in such a way as to result in the death of or grievous bodily harm to the person attempting to arrest them, it cannot be said that no reasonable jury who had applied their mind to the facts of the case could have arrived at different verdicts as between the appellant and John Taufahema.

35 It seems to me that it was open to the jury to draw such a inference from the subsequent conduct of John Taufahema. Such an inference was capable of being strengthened by the transcript of the ERISP of Mr Tuiniua. These matters provide a significant difference in the material upon which the jury could find that John Taufahema had the requisite intention to render him liable to conviction for murder whereas the appellant did not.

36 If that be correct, the only question remaining (which does not seem to have been agitated on behalf of the appellant) is whether, it being open to the jury to distinguish between the intent of John Taufahema and that of the appellant, there remained sufficient evidence from which an inference in the form required for Count 2 could be drawn by the jury against the appellant. There clearly was. The fact that all of the offenders, including the appellant, exited the vehicle carrying weapons when it was clear that they were being pursued by the police was evidence consistent with and capable of supporting a finding by the jury that there was in contemplation by the appellant that one of their group might use a pistol in some way to avoid arrest. It is clear from the jury’s verdict that they were not satisfied that the appellant’s intention went so far as to contemplate that a pistol would be used to shoot the officer or that grievous bodily harm or death was contemplated by the appellant as a possible outcome.

37 The appellant’s submission that the verdict against him on Count 2 represented a compromise verdict is not made out. His Honour gave an express direction to the jury that they must not approach the alternative count by way of a compromise (summing up 64.6). The fact that the jury asked for a further explanation of the meaning of “joint enterprise” made it clear that they were paying careful attention to that issue (summing up 69.2). The fact that the tape recording of the ERISP of Mr Tuiniua was requested by the jury, would seem to indicate that they had in contemplation the importance of any difference in intent between the appellant and John Taufahema (summing up 77).

38 Ground of appeal one challenging the conviction of the appellant is not made out.

Ground of Appeal 2 – Appeal against sentence

39 The appellant’s second ground of appeal is:

(2) Additionally or alternatively, the appellant seeks leave to appeal against the sentences imposed by the learned trial judge in that each of the sentences imposed by him was manifestly excessive.

40 His Honour imposed on 2 October 2003 the following sentences on the appellant and John Taufahema.

Appellant

Possess firearm without authority 4 years from 3 April 2005 to
(s7(1) Firearms Act 1996) 2 April, 2009
No non-parole period fixed
Sentence concurrent
Plea of guilty.

Use offensive weapon in company to
avoid lawful arrest 10 years from 3 April 2005 to 2 April 2015
Non-parole period 6 years from 3 April 2005 until 2 April 2011.

Found guilty at trial.

John Taufahema

Murder 21 years from 27 March 2005 until 26 March 2026
Non-parole period 14 years
from 27 March 2005 to 26
March 2019
Partly concurrent and partly cumulative.


Unauthorised use of firearm 5 years from 27 March 2002 to 26 March 2007.
No non-parole period fixed.
Plea of guilty.

Attempted carjacking
(S154C Crimes Act 1900) 6 years from 27 March 2002

to 26 March 2008.

No non-parole period fixed.
Sentence concurrent
Plea of guilty

Use offensive weapon in company to
avoid lawful arrest
(S33B(2) Crimes Act 1900) 7 years from 27 March 2004 to 26 March 2011
Non-parole period fixed.
Sentence concurrent.
Plea of guilty.

41 The appellant challenges the sentence of 10 years with a non-parole period of 6 years in relation to the s33B(2) offence on the basis that it offends the principle of parity when compared with the fixed sentence of 7 years imposed on John Taufahema.

42 It is submitted on behalf of the appellant that there was a higher level of culpability in the offence of John Taufahema in that he “used” the pistol when he menaced the police officers and Ms Kassis, whereas it was never suggested that there was actual use of a pistol by the appellant. This submission highlights a threshold difficulty for the appellant in relying upon the principle of parity. Although the offences were identical, the circumstances were quite different in each case.

43 This is tantamount to inviting this Court to compare apples with oranges. This Court is being asked to compare different offending conduct which occurred in different circumstances at different times. The appellant’s offence related to the primary incident when the appellant was in company with three other offenders, all of who were armed with loaded pistols. John Taufahema’s offence occurred in quite different circumstances when he was in company with Penisini who by that time had discarded his weapon. This significant difference in circumstances makes reliance upon the principle of parity at best problematic.

44 Assuming that the two offences are capable of comparison, a significant consideration is that Taufahema pleaded guilty to his offence, whereas the appellant was only convicted after a trial. The fact that the Crown had a strong case in relation to the s33B(2) offence against Taufahema for which he was convicted (ie that involving the incident after the shooting of Constable McEnallay) is irrelevant to the utility of the plea of guilty and goes rather to the issue of contrition or remorse (R v Thompson & Houlton (2000) 40 NSWLR 383 at [136] and [137].

45 Of perhaps most significance is the context in which the sentences were imposed. John Taufahema was sentenced to a fixed term of imprisonment for 7 years without a non-parole period because that sentence was wholly subsumed in the sentence which he received for the murder conviction (21 years with a non-parole period of 14 years). In that context it is somewhat artificial to submit that there was a thirty percent difference between the two sentences. Not only were the circumstances of the two offences different but the sentence imposed on John Taufahema has to be looked at as part of a total scheme of sentencing imposed by the trial judge. As against John Taufahema, four offences were involved, and the sentences involved accumulation and concurrency. There were issues of totality reflected in the scheme of sentences which applied to him which were absent in the case of the appellant.

46 The principle to be applied remains that stated in Postiglione v The Queen (1996) 189 CLR 295 at 301:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.”

And at p 313:

“I do not understand the principles stated by the High Court in Lowe v The Queen to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community.” (McHugh J quoting with approval from the judgment of Doyle CJ in R v Cox (1996) 66 SASR 152 at 159.

47 The offences occurred in quite different circumstances and the sentencing scheme in relation to Taufahema and the appellant was different. The principle of parity has not been offended. No sentencing error has been disclosed.

48 Ground of Appeal 2 challenging the severity of the appellant’s sentence in relation to the s33B(2) offence is not made out.

Conclusion

49 The orders which I propose are that the appeal against conviction be dismissed. In relation to the application for leave to appeal against severity of sentence, leave should be granted but the appeal dismissed.

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Last Modified: 10/18/2013