R v Puletua

[2016] NSWDC 424

District Court

New South Wales

Medium Neutral Citation:	R v PULETUA [2016] NSWDC 424
Hearing dates:	05/07/2016
Date of orders:	08 September 2016
Decision date:	08 September 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Convicted; sentenced to a term of imprisonment of 4 years 6 months with a non-parole period of 2 years.
Catchwords:	Criminal – Sentence, break and enter dwelling house, commit a serious indictable offence namely stealing, parity, parity.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Lowe v The Queen [1984] HCA 46 Muldrock v The Queen (2011) 244 CLR 110 Postiglione v R [1997] HCA 26
Category:	Sentence
Parties:	Director of Public Prosecutions Benjamin Michael Puletua
Representation:	Counsel: Mr Prince – Director of Public Prosecutions Mr Hancock - Offender   Solicitors: Director of Public Prosecutions SAS Lawyers - Offender
File Number(s):	2015/59801

SENTENCE

1. HIS HONOUR: Mr Puletua, my practice is to tell people in advance what sentence is to be imposed. I am assuming that is the main interest for you, although there are other things that I have to deal with in my remarks on sentence. In respect of the matter for which you were found guilty by the jury, I propose to sentence you to a total of four and a half years imprisonment. That sentence will date from 10 September 2016. I fix a non-parole period of two years dating from 10 September 2016. In fixing the non-parole period I have taken into account the effect of that sentence is to make it accumulative upon the sentence of four months imprisonment that was imposed earlier this year.

2. I will give my reasons now. Benjamin Michael Puletua appears today for sentence in relation to an offence for which he was found guilty after pleading not guilty at trial. The charge to which he pleaded not guilty but for which he is to be sentenced today was that he, on the ninth day of May 2014 at Ashfield did break and enter the dwelling house at Rozita Barmooz situate at Unit 21, 411-415 Liverpool Road, Ashfield and then in the said unit did commit a serious indictable offence namely stealing a number of personal items belonging to the named victim in circumstances of aggravation, namely that he was in company with another person. This is an offence contrary to s 112(2) Crimes Act 1900. It carries a maximum penalty of 15 years imprisonment. It has a standard non-parole period of five years imprisonment.

3. The prisoner was born on 22 July 1985. The crime being committed in May 2014 suggests that at the relevant time the prisoner was 28 years of age. He was arrested in relation to this offence, however, on 27 February 2015. The circumstances of his arrest are not in issue and I have been told by the Crown, and I understand it is not disputed by the defence, that there is no time spent in custody directly referrable to the crime with which I am now concerned, although the prisoner has been serving other terms of imprisonment, the details of which I will refer to in a moment.

4. There was a co-accused. The prisoner was obviously in company at the time of the commission of the offences. The Crown has pleaded the person with whom he was in company is a man called Bilal Elatrach. Mr Elatrach was sentenced by her Honour Judge Hock on 27 November 2015 and, of course, in the context of issues of “parity” of sentencing and seeking not to engender “justifiable sense of grievance”, the sentencing of Mr Elatrach is of significance here.

5. Mr Elatrach, however, was sentenced in relation to more than just the offence with which I am concerned. I acknowledge from the outset of course he pleaded guilty to the common offence he has with this prisoner and received, in respect of the indicative sentence imposed upon him, a discount of 25% upon the otherwise appropriate sentence. However, he was sentenced by her Honour in relation to two aggravated breaking and entering and stealing and committing serious indictable offences in circumstances of aggravation contrary to s 112(2), one count of being in a building committing a serious indictable offence to wit stealing and breaking out contrary to s 112 and one charge of breaking and entering a building and committing a serious indictable offence to wit stealing, again an offence contrary to s 112. Both of those latter matters having maximum penalties of 14 years imprisonment.

6. He was also sentenced by her Honour for five charges of dishonestly obtaining property by deception, each carrying a maximum penalty of ten years imprisonment. He asked for six further matters to be taken into account on a Form 1 in respect to the principal offence which was the breaking and entering and stealing in circumstances of aggravation, other than the matter with which I am now concerned and there were a number of matters on a s 166 certificate. Thus, the circumstances of his sentencing, in the context of ‘totality’, reflected a far more complex situation than here.

7. The facts of the matter with which I am concerned are primarily to be seen in the helpful submissions of the learned Crown Prosecutor. They are not in dispute. The issue at the trial was whether the Crown had proven beyond reasonable doubt that the taller of the two men, who could be seen on the building’s closed circuit television operating in the hallway outside the unit of the victim, was in fact the prisoner.

8. Some time after 11.45am the prisoner and his “co-accused” entered the apartment building at 411-415 Liverpool Road, Ashfield and moved to level 3 via the internal fire stairs. They gained access to level 3 by causing some minor damage to a fire door leading out into the corridor and then the two offenders in due course, in their various ways, made their way to the doorway of unit 21, the premises occupied by the victim. CCTV footage was available to the jury and of course available for consideration in these sentencing proceedings. The CCTV camera was located on the ceiling, as I understand it or certainly high up on the wall, adjacent to the entrance to unit 21 and a clear view can be had of that doorway.

9. The evidence from the closed circuit television which is not detailed in the Crown’s submissions, although not deliberately I accept, shows that the other man, Elatrach, lead the way. The prisoner was seen in the closed circuit television to come onto the floor after Elatrach, carrying some items in his hands and Elatrach was the person who spent most of the time endeavouring to force the lock to enable entry to the unit. The prisoner can be seen in the closed television coming to the doorway at a time when it would appear Mr Elatrach had managed to damage the locking device of the doorway to the unit and assisted the co-offender by pushing the door as the other man apparently worked on the locking device.

10. The prisoner was wearing white latex gloves and in fact it was the tip of such a glove that led to the identification of a DNA profile that linked the accused to that item and thus the commission of the offence. Although the jury, as I would understood it, in view of the position taken by counsel for the accused and the Crown, were properly instructed as to what use they could make of the appearance of the taller man, the man that I know to be the accused from the jury’s verdict. The truth of the matter is, although this was not explained to the jury, that the taller man showed enough of his appearance to demonstrate that he was remarkably similar to the accused.

11. The two offenders entered the premises and it is clear from the evidence of Ms Barmooz and the photographic evidence, that they set about seeking to ransack various rooms and parts of the premises in order to find valuables. Of course I am denied direct evidence of what knowledge the two men had, or either man had, about the contents of the apartment. But it would seem, assessing the matter from the perspective of the way in which Mr Elatrach moved to the doorway of unit 21 immediately and not any other doorway in the premises, that entry to the premises was targeted.

12. Removed from the premises was a range of property belonging to the victim. The Crown provided a “victim impact statement” in good faith but I raised with him the issue of whether a victim impact statement in that form could be received given the terms of the legislation. No particular objection was taken to its content by Mr Hancock because it stood to reason by and large that what was contained within it. That is the effect of this theft from Ms Barmooz was significant. She not only lost a large quantity of cash in excess of $6,000 but she lost other items including valuable documents, passports and other identification papers of herself and her children and the two offenders, as can be seen from the closed circuit television, used luggage from within the house and items of clothing, to facilitate the removal of property and the like.

13. I have not been given direct evidence of the total value of the property that was stolen but I note in the context of the remarks on sentence in relation to Mr Elatrach that the total amount of the property stolen was valued at approximately $15,210. I accept, as a general proposition, that the assessment of the value of items like passports and the like, is not one necessarily to be limited to the assessment of the nominal value of renewing a passport and there are other personal papers of course that one would have thought were irreplaceable. Why the thieves had to remove personal papers, I do not know. There is no evidence of course that the papers were used for any form of identity theft and in fact I have no evidence that this prisoner is capable of using the documents for that purpose.

14. I have no evidence at all from the prisoner in any respect that could be regarded as reliable as to his involvement in this crime. He gave no evidence before the jury. All I have are some representations made to the Community Corrections officer which are of a hearsay nature and have not been tested. What I do know, however, is that Mr Elatrach, who at the time of the commission of the offence, was about 34 or 35 years of age, had a much greater - in the sense of longer and more serious - criminal history, in respect of offences of dishonesty and particularly in breaking into properties. It is also quite clear when one reads the facts in relation to him, not just in relation to this matter but also in relation to the other crimes he committed, that it might not be unfair to describe Mr Elatrach as something of a “professional thief” or professional burglar.

15. According to the learned sentencing judge, before the commission of the offences with which he was sentenced he had 19 prior convictions for breaking, entering and stealing over a 15 or 16 year period and has been sentenced in relation to a large number of offences of dishonesty beyond those offences to terms of imprisonment over that period of time of varying length.

16. His criminal history is very significant in an assessment of what, to my mind, is almost self-evident from the CCTV footage in that he led the way. He was the person who knew what he was doing and the prisoner was there to assist him. Of course, I have got no assistance from the prisoner, even in the hearsay representations he made, as to what proportion of the spoils of the theft were made available to him. This was a joint criminal enterprise between the two men. It might be reasonable to conclude that they shared in the proceeds, whether the prisoner gained access to the personal papers of the victim or not, I do not know, and it is not clear whether Mr Elatrach kept those as well. It is clear from the CCTV footage that the prisoner, however, was following his lead and it is clear from the criminal history of Mr Elatrach, that he, even though the prisoner has prior findings for dishonesty and a prior finding for breaking, entering and stealing, is a far less experienced thief or intruder into private premises.

17. With regard to the criminal history of the prisoner, as I pointed out, his criminal history is not as extensive as Mr Elatrach’s, both in number of convictions or in the character of the offending but he does have findings of guilt for serious offences. I point out in passing, that one of the representations he made to the Community Corrections officer was that his purpose for committing the crime with which I am concerned was to obtain money for drugs and it is clear that he has some history of use of prohibited drugs.

18. He does findings of guilt for offences of what could be called violence and dishonesty, demand property by force with intent to steal in 2007 for which he was fined $1,000 in the Local Court and convicted of affray in 2006 and sentenced to six months imprisonment which was suspended. Convicted of an offence in 2007 of assault occasioning actual bodily harm in company and larceny for which he was placed on good behaviour bonds for two years. He has convictions for driving offences in 2005 and having goods in custody suspected of being stolen or unlawfully obtained in 2008.

19. I pointed out, as I said, there are convictions for possessing prohibited drugs. The two most significant convictions, one would have thought on his criminal history amongst the number that he has, are a conviction in October 2010 for an offence, for which he was charged in November 2008, of robbery whilst armed with an offensive weapon for which he was sentenced to three years five months imprisonment commencing in 2010 with a non parole period of one year. Of course that parole had expired at the time of the commission of the offence with which I am concerned. He also has a conviction at the Bankstown Local Court, recorded when he was serving the sentence for the armed robbery matter, of breaking, entering and stealing. It was a matter dealt with in the Local Court and he was sentenced to six months imprisonment and ordered to pay compensation of $14,800 so the amount of property stolen was similar in value, at least in money terms, to the offence with which I am concerned, but the offence was absent of circumstance of aggravation. Hence being dealt with in the Local Court.

20. He has convictions in 2015 which are of some relevance. A conviction in November 2015 of damaging property for which he was placed on a 12-month bond. He also has a conviction for larceny or stealing in May 2016 for which he was sentenced to four months imprisonment commencing on 10 May and another conviction in respect of an offence of damage property for which he was sentenced on the same date to three months imprisonment. He was on a good behaviour bond at the time of the commission of the offence with which I am concerned. He was granted a good behaviour bond commencing on 5 June 2013 according to the Crown’s cover sheet. That was in respect of an offence of goods in custody suspected of being stolen or unlawfully obtained, recorded at the Burwood Local Court on that date. That good behaviour bond ran for a period of two years or was to run for that period. Thus, this offence was within that period.

21. With regard to his prior contact with Community Corrections, obviously having had parole supervision on at least one occasion and various bonds, both s 12 and s 9 bonds, he has had considerable contact, although again not as much as Mr Elatrach has had. In relation to that report it is not altogether favourable. He had shown reluctance to “engage in intervention”. He liaised on occasions poorly with the Service. In relation to his parole he was released but had his parole revoked in respect of some transgression but he was released to parole after completing a relapse programme. His most recent supervision in respect of the s 9 bond that he was in breach of when he committed the offence with which I am concerned was deemed to be “unsatisfactory”. So, he has a history of non compliance and disinterest in the assistance that can be provided to him by Community Corrections.

22. The prisoner is now, as I understand it, 31 years of age. He is at Bathurst gaol as a remand inmate. He has some correctional infringements which I need not dwell upon at this point. He identifies as a person of Samoan heritage. He says that his family have led an ordinary law-abiding life and he was raised with strong Christian values. His grandfather was a priest. However at a young age he became involved in the use of drugs and also, he said, reacted to the “constraints of a Christian life”. He has a history of aggressive behaviour, particularly within the family. His family is a person in need of protection in respect of an apprehended violence order, which is sad to hear. His mother has been dead since 2008. He has a son but he apparently has no responsibility for that son who is five nor any connection with that son. In fact he has only recently reported the existence of the son to Community Corrections. He has had a disrupted education. He said that he completed two years of an apprenticeship at an automotive smash repairer but that has not been completed and in his adult life, mainly due to his substance abuse and terms of imprisonment, he has only had short-term intermittent casual employment.

23. I accept a history of drug usage over a period of time. He has been assessed within the system where he is held at the moment as being eligible for an ageing disability and home care assistance package on his release to custody. In fact this assessment was made when he was in custody for the armed robbery matter and he has been referred to what is called the ADHC for further assessment, but that organisation considered he was not suitable for case management. He seems to not endear himself to those that are seeking to assist him, both inside and outside of gaol.

24. He expressed no remorse in respect of this offence and by his plea of not guilty, although he does not get penalised for that, there is certainly no evidence of remorse as a mitigating factor in this case.

25. His risk of re-offending is considered medium to high by Community Corrections and clearly that is so but he also has a large number of issues that need to be addressed, including matters of education, employment, his finances, his family relationships, his accommodation, his recreation time, his associations, his alcohol and drug problems, his emotional and personal problems and his general attitude. The truth of the matter is that he is a person one can easily foresee being back before the Courts at some time in the future committing further offences unless he was prepared to fundamentally readdress his lifestyle and his attitudes when he is released from custody. He said that he wishes to change his ways but at 31 years of age, he is getting to the age where he clearly is mature enough to take responsibility for his conduct.

26. There is some suggestion of “mental health issues” that may need therapeutic intervention but there is no evidence before me of such a condition that would warrant consideration of lessening the weight to be given to general deterrence or for that matter, increasing the weight to be given to personal or specific deterrence to prevent him being a danger to the community. Notwithstanding the circumspection of Community Corrections, it is clear to me, with the multitude of issues that are identified by Community Corrections, he is a person who needs significant professional assistance on his release, not just for his benefit but for the benefit of victims such as Ms Barmooz. Because if he does not get professional assistance or if he does not take it up, he will just continue to commit crimes and there will be further victims left in his wake. But that of course probably lead to greater and greater terms of imprisonment.

27. In relation to the material before me, I have noted that the prisoner did not give evidence. I have the Community Corrections report and I have the various papers, including the criminal history and the custody record, of Mr Elatrach.

1. To just briefly deal with the submissions, because most of the submissions will be addressed, or have been addressed either implicitly or explicitly, when I deal with the multitude of legal issues that I have to address. His counsel noted the significance of parity in relation to the matter, noted the significant criminal history of Mr Elatrach, accepted the degree of planning as was found by Her Honour Judge Hock. He noted the co-accused was seven years older with a greater criminal history. I have made note of those matters.

2. He noted in the context of what could be called Ponfield criteria, that is taken from the judgment of Grove J, who spoke for the Court in a guideline judgment in relation to breaking, entering and stealing matters, which was handed down, if my memory serves me correctly, before the enactment of the Crimes (Sentencing Procedure) Act 1999, that there was no “gratuitous damage”. I accept that there was “no gratuitous damage”, but one of the features of the case is that the two thieves ransacked parts of the property of the victim in an endeavour to find valuables including, valuables within a safe that they were able to force entry. If one undertook some research in relation to the matter one would find that the wisdom of Grove J as a judge is very much confirmed by the way in which the legislature, in fixing the various aggravating and mitigating factors enacted in the Act that came into force in 1999, borrowed many of the matters identified by his Honour directed at the offence of breaking, entering and stealing.

3. Counsel for the prisoner noted the critical issues of course with the length of the sentence and the issue of the non-parole period and the commencement date. I might deal with the last matter first. It is the easiest matter as far as I am concerned.

4. I am only concerned with the prisoner having been in custody, as the records show, for four months before 9 September when the longer of the two sentences expired. If the prisoner had been in custody for a much longer period, or if there was a revocation of parole, different considerations would arise. I believe that I can reflect the commencement of the sentence cumulative upon the brief sentences imposed in the Local Court in the fixing of the non-parole period and an adjustment, in part to recognise the ‘special circumstance’, of an accumulation of sentence.

5. I note that in sentencing the prisoner to the sentence I have foreshadowed to him, I am really fixing a sentence that will have the effect, in conjunction with the other sentence, of keeping him in custody for a minimum of two years and ten months and leave him with a total sentence of four years and ten months, albeit that that offending is unrelated.

6. Counsel for the prisoner acknowledged that it was a “landscape of not many positives”. He accepted that his criminal history denied him any particular leniency, which I accept but I do not accept that his criminal history is a “aggravating factor” as that expression is understood pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999, herein after I will refer to as ‘the Act’. It could not be said however of Mr Elatrach that his criminal history was not an “aggravating factor” given his large number of prior offences over a long period of time of breaking into domestic properties.

7. With regard to the Crown’s helpful written submissions, he dealt with a number of legal issues. He dealt with the aggravating factors he submitted arose under s 21A(2). I have dealt with the issue of his previous convictions. Certainly the Crown is correct that the offender was on conditional liberty at the time of the offence and that is an aggravating factor under s 21A(2)(j) of the Act. There are of course, varying degrees of intensity of aggravation in that regard. If the prisoner was on parole in relation to a dishonesty matter or particularly a breaking, entering and stealing matter that would be a more significant aggravating factor.

8. The offending with which I am concerned was found by her Honour to be “planned” criminal activity and it would appear there was a degree of planning in this; the targeting of the unit, the use of tools to gain entry to the unit, the wearing of gloves and partial disguise. Of course the extent to which the planning could be attributed to this prisoner as opposed to the more experienced thief, I cannot say. The prisoner however confirmed to the Community Corrections Service that there was information available to him as to property available at the subject premises.

9. With regard to mitigating factors in the context of the submissions made by counsel for the prisoner, there are very few indeed. The Crown says that there are not any mitigating factors in s 21A(3) that are immediately available. Certainly it must be fairly said that it is difficult to find them. The prisoner has prior criminal convictions. He is not a person of good character. I could not conclude obviously that he was unlikely to re-offend or even that he had good prospects of rehabilitation. There is no remorse, obviously there is no plea of guilty, no pre-trial disclosure and it could not be said that the injury and loss was not substantial. I suppose one could find a partial mitigating factor in the sense that I could not conclude that this was “organised criminal activity”, as opposed to planned criminal activity, but that is the reality of the situation and I heard no submission to the contrary.

10. The Crown referred to the guideline judgment in Ponfield. I have already noted that. Many of the matters in Ponfield relating to a supposed typical case of breaking, entering and stealing, as I said, were taken up subsequent incantations of s 21A.

11. With regard to the objective seriousness of the offending, I note that the property that was lost, the degree of planning, but in the context of having to determine this matter, because of the existence of a standard non-parole period in the operation of s 54A of the Act, I have determined ultimately, noting the value of the property, the degree of planning, the circumstances of the offending, that in the range of offending of this type the offence can be seen as just below the middle range of objective seriousness.

12. Sections 54A and 54B of the Act were amended in wake of the decision Muldrock v The Queen (2011) 244 CLR 110, particularly at [18]-[30]. The standard non-parole period represents a non-parole for an offence in the middle range of objective seriousness in the Table of the Division, only taking into account the objective factors affecting the relative seriousness of the offence. I accept the submission of counsel for the accused that in the range of aggravating for this type of offence, the factor of “being in company” can be seen as not as serious as other factors. But as I pointed, being in company in a particular case with a standard non-parole period, may be a very significant aggravating factor indeed. In this matter it means that the prisoner was able to provide some marginal assistance in pushing open the door and of course provided an extra pair of hands to search the premises and to take more property away.

13. Section 54B(2) concludes that in determining the appropriate sentence, including the non-parole period, the matters to be taken into account include a range of matters, particularly the subjective case, issues arising under s 44 and those matters that otherwise are not concerned with the assessment of the objective seriousness of the offending.

14. With regard to the sentencing of the prisoner, obviously as the Crown points out, the Court is required to have regard to s 3A of the Act. The various purposes of sentencing arise here in a range of ways to varying degrees, need for both general and specific deterrence, there is a need to denounce the offender’s conduct, to make him accountable, to adequately punish him and also there is the need to assist in the promotion of his rehabilitation. There is a need to recognise the harm done to the victim. Certainly personal and general deterrence loom large. Hence of course, by regard to s 5 of the Act, the threshold, if it might be called that, is well passed and a term of imprisonment is the only sentence to be imposed.

15. It brings me back however to the issue of parity in the context of what went before in the sentencing of the co-accused. I have pointed out that the co-accused, when he was sentenced by her Honour, faced a very large number of offences. I detailed those offences earlier in my judgment. When one turns to what her Honour did in the matter, bearing in mind of course, her Honour determined that the prisoner Elatrach was entitled to a 25% discount for the utilitarian benefit of the plea of guilty in accordance with the guideline judgment, her Honour fixed an indicative sentence, as it was described in respect of the offence with which I am concerned, of five years with a non-parole period of three years and three months.

16. I note in relation to the other aggravating breaking, entering and stealing offence in circumstances of aggravation, the indicative sentence was five years and six months with a non-parole period of three years and three months. She also made indicative sentences for the breaking, entering and stealing matter of three years, stealing and breaking out of two years six months and sentences between one year and nine months in respect of the dishonestly obtain property. Her Honour determined, pursuant to s 53A of the Act, that she would impose an aggregate sentence. She made a finding of special circumstances.

17. The s 166 matters were greeted with convictions under s 10A. The fixing of any further penalty obviously was academic. The effective overall sentence that she said she imposed upon the offender, from the date of 6 August 2014, was a non-parole period of five years and the total term of seven years and three months. She made a finding of special circumstances including concerning matters particular to that sentencing exercise, the accumulation of sentences and also the fact that the prisoner needed an extended period of supervision. The extent to which she partially accumulated sentences is not indicated, not that her Honour was required to do so, and whilst aggregated sentences pursuant to s 53A obviously are available to Judges and indicative sentences are required to be fixed, one of the difficulties is, particularly in a case such as the one that I am concerned with here, dealing with only one of a number of offences that are similar, is understanding precisely the extent to which her Honour determined accumulation in respect of which matters. Of course, as I said, her Honour was not required to do that.

18. For myself I do not favour s 53A. Personally I prefer to undertake the exercise of individual sentences and make it very clear which sentences are accumulative or not accumulative upon others as the case may be. In any event, in the context of the parity principles I am required to apply, I note of course Lowe v The Queen from 1984 and the decision of Postiglione of the High Court in 1997 as well as many decisions of the Court of Criminal Appeal, not the least the decision of Jimmy from 2010. As Rothman J in Jimmy said, noting Aristotelian principles of equality, I am required to treat alike as alike and unalike as unalike to the extent of their un-alikeness, based upon reasonable or rational bases, to paraphrase his more eloquent words. This aspect has been somewhat difficult. I note the indicative sentence that her Honour gave but I also note the way in which her Honour reflected the totality of a great deal of crime in the total sentence that effectively restrains Mr Elatrach. I am not saying of course thus the indicative sentence is irrelevant, quite the contrary. It is of considerable importance, but measuring the alikeness and un-alikeness of the two men in the context of a joint criminal enterprise, where it is clear that Mr Elatrach was a more experienced thief and took a leading role in the offending, even on the CCTV footage, is a difficult task.

19. In the end result I have determined, noting the advantages to Mr Elatrach of a discount for the plea of guilty, relevant contrition from the plea of guilty and the like, that the sentence I should impose on this offender, notwithstanding his plea of not guilty, should be below that of the indicative sentence reflected by her Honour, which as I said, reflects itself a 25% discount. In the context of the general sentencing exercise undertaken by her Honour in respect of a range of criminality, if anyone needed to understand the suggestion of professionalism in Mr Elatrach’s modus operandi, one need only read the facts in relation to the other aggravated breaking, entering and stealing matter in which he was involved requiring sentencing by her Honour, for which her Honour gave a slightly greater indicative sentence.

20. In any event, I have done my best to weigh up all the competing considerations. I am mindful that the High Court in Markarian in 2005 noted that many matters the judge is required to take into account, require what is called intuitive or instinctive synthesis and unlike the Court of Criminal Appeal in that matter, the Court is not required to undertake some sort of mathematical analysis in order to arrive at what is claimed to be a just outcome.

21. I take into account all the submissions that have been put by the parties and the learned Crown Prosecutor, as I have already noted from the remarks that I have made in relation to this matter.

22. I have determined, as I said, that there are special circumstances. I have noted one matter, it is a minor matter, the issue of accumulation, but I have also noted in relation to Mr Puletua that, as I have said, he does need an extended period of supervision. Whether he is prepared to take it up or not is a matter for him, because there is an interest in the community in assisting the prisoner to reformation, just as there is an interest in the prisoner in pursuing that course if he so desires. Of course, whether he is willing to take up the challenge, and it will be a challenge, is entirely a matter for him. The truth of the matter is however, that he will not be eligible for parole automatically. The Parole Authority will have to make that decision itself based upon the assessment of Mr Puletua at the time that he is to be considered for release to parole and I am assuming that the Court will take into account those remarks that I have made today. But I do not have the capacity to predict ahead two years or so to anticipate all the matters that the Parole Authority may need to take into account.

23. Could you stand up please, Mr Puletua. In respect of the matter for which you were found guilty by a jury, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of two years to date from 10 September 2016 expiring on 9 September 2018. The balance of sentence is two years and six months expiring on 9 March 2021.

24. Mr Crown, any technical matters from you?

25. PRINCE: No your Honour.

26. HIS HONOUR: Any matters from you, safety inspection report?

27. SHENOUDA: No your Honour.

28. HIS HONOUR: You’ll have to speak to Mr Puletua downstairs. You’re excused, Mr Puletua. Do you understand the sentence?

29. OFFENDER: Yes ..(not transcribable).. eligible for parole?

30. HIS HONOUR: You’re eligible for release to parole on 9 September 2018, yes. That’s three years from the expiry of the sentence you were serving up until a week or so ago. What’s the date today? It’s the 8th. The sentence you’re currently serving, I think it expires tomorrow.

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Decision last updated: 14 June 2017