R v Samuel Samuelu; R v Timothy Samuelu

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Samuel Samuelu; R v Timothy Samuelu [2004] NSWCCA 331 revised - 24/09/2004

FILE NUMBER(S):
2004/1788
2004/1786

HEARING DATE(S): 23/09/2004

JUDGMENT DATE: 23/09/2004

PARTIES:
Regina
Samuel Samuelu
Timothy Samuelu

JUDGMENT OF: Sully J Buddin J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1052

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
J Girdham (Crown)
J Stratton SC (Respondents)

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Respondents)

CATCHWORDS:
Sentencing - Crown appeals - multiple offences of armed robbery - malicious wounding with intent to escape lawful apprehension

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Samuel Samuelu. Appeal allowed. Confirm sentences in respect of counts 1 - 4. Quash sentence in respect of count 5. In lieu thereof fix a non-parole period of 3 years with a total term of 6 years with each term to commence on 25 December 2006. The total term will expire on 24 December 2012 and the non-parole period will expire on 24 December 2009 at which time the respondent will be eligible for release on parole. Timothy Samuelu. Appeal allowed. Confirm sentences in relation to counts 1 - 5. Quash sentence in respect of count 6. In lieu thereof fix a non-parole period of 4 years with a total term of 7 years with each term to commence on 16 December 2004. The total term will expire on 15 December 2011 and the non-parole period will expire on 15 December 2008 at which time the respondent will be eligible for release on parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1788
2004/1786
SULLY J
BUDDIN J
SHAW J
THURSDAY 24 SEPTEMBER 2004

REGINA v SAMUEL SAMUELU
REGINA v TIMOTHY SAMUELU

Judgment

BUDDIN J: These are appeals brought by the Director of Public Prosecutions against sentences imposed upon the respondents (who are brothers) in the District Court on 6 April 2004 following their pleas of guilty to various offences.
The various counts of which the respondents were convicted, the dates upon which the particular offences occurred and the relevant maximum penalties applicable to the offences in question appear in the following table:
Count 1:                Robbery whilst armed with
  an offensive weapon
(d.o.o. 5/4/2002)
Maximum Penalty: 20 years
Imprisonment
Count 2:                              Robbery whilst armed with
  an dangerous weapon
(d.o.o. 1/5/2002)
s.97(2) Crimes Act
  Maximum Penalty: 25 years
  imprisonment
Count 3:  Robbery whilst armed with
  an offensive weapon
  (d.o.o. 8/6/2002)
s.97(1) Crimes Act
  Maximum Penalty: 20 years
  imprisonment
Count 4:  Robbery whilst armed with
  an offensive weapon
  (d.o.o. 8/6/2002)
s97(1) Crimes Act
  Maximum Penalty: 20 years
  imprisonment
Count 5:  Malicious wounding with
intent to prevent lawful
apprehension
(d.o.o. 8/6/2002)
s33 Crimes Act
Maximum Penalty: 25 years
imprisonment
Form 1                  Being carried in a stolen
(attaching to        conveyance (3 counts)
Count 2):
s.154A(1)(b) Crimes Act
  Maximum Penalty: 5 years
  imprisonment
Robbery in company (2
  counts
s97(1) Crimes Act
  Maximum Penalty: 20 years
  imprisonment
Robbery whilst armed with
  Offensive weapon (4
  Counts)
S97(1) Crimes Act
  Maximum Penalty: 20 years
  imprisonment
Robbery whilst armed with
  a dangerous weapon
S97(2) Crimes Act
  Maximum Penalty: 25 years
  imprisonment
In respect of each of counts 1, 3 and 4 the respondent Samuel Samuelu was sentenced to 4 years imprisonment with a non-parole period of 2 years. Each term was ordered to commence on 25 December 2003. The head sentence was thus due to expire on 24 December 2007 and the non-parole period on 24 December 2005. Those three sentences were ordered to be served concurrently. In respect of count 2 (and taking into account the matters on the Form 1) the respondent was sentenced to 5 years imprisonment with a non-parole period of 3 years with each term also to commence on 25 December 2003. The head sentence for that offence is thus due to expire on 24 December 2008 and the non-parole period is due to expire on 24 December 2006. In respect of count 5, the respondent was sentenced to 5 years imprisonment with a non-parole period of 3 years with each term ordered to commence on 25 June 2005. The head sentence is due to expire on 24 June 2010 and the non-parole period on 24 June 2008. The total effective sentence is thus one of 6½ years imprisonment with a non-parole period of 4½ years. All these sentences were ordered to commence at the expiration of a pre-existing sentence to which further reference will be made in due course.
In addition to those matters, the respondent Timothy Samuelu was also sentenced in respect of an additional count of malicious wounding with intent to prevent lawful apprehension. He also received, in respect of counts 1, 3 and 4, sentences of 4 years imprisonment with a non-parole period of 2 years to be served concurrently. Each of those sentences commenced on 16 June 2002, the date on which he went into custody. In respect of count 2, (and taking into account the Form 1 matters) he also received a sentence of 5 years with a non-parole period of 3 years. Again each term was ordered to commence on 16 June 2002. The head sentence for that offence was ordered to expire on 15 June 2007 and the non-parole period on 15 June 2005. In respect of count 5, a sentence of 5 years with a non-parole period of 3 years was fixed, but this sentence was ordered to commence on 16 December 2003 resulting in a head sentence to expire on 15 December 2008 and a non-parole period to expire on 15 December 2006. In respect of count 6, a sentence of 6 years imprisonment with a non-parole period of 4 years was fixed. This sentence was ordered to commence on 16 June 2003 resulting in a head sentence which is to expire on 15 June 2009 and a non-parole period which is to expire on 15 June 2007. The overall effective sentence is thus one of 7 years imprisonment with a non-parole period of 5 years. This respondent received a slightly heavier sentence than his brother to reflect the fact that he had pleaded guilty to an additional offence.
A co-offender, whom I shall refer to as JP, was sentenced by Judge Bellear. His Honour’s remarks, together with the material upon which that offender was sentenced, were before the judge who sentenced the respondents. JP was a co-offender with the respondents in respect of all matters but for one of the armed robbery offences. However JP stood for sentence in respect of another armed robbery which did not involve either of the respondents. JP was sentenced to an overall sentence of 6 years imprisonment with a non-parole period of 3 years and 9 months.
The facts in relation to each of the offences were not in dispute. That being so, they can be shortly stated. On 5 April 2002 the two respondents and JP travelled in a stolen vehicle to Wentworthville (this was one of the offences which was taken into account on the respective Form 1 documents). There the respondents entered a newsagency. One of them was armed with a screwdriver and their faces were partially covered. JP remained in the car. The two proprietors of the business were threatened with the screwdriver. A total of $1440 was taken from the victims. One of the victims recorded the registration number of the car in which the offenders made good their escape. One of the victims subsequently identified Timothy Samuelu from photographs as being one of the robbers (Count 1).
On 14 April 2002 the three offenders entered an electronics store at Winston Hills. An employee was forced into a storeroom where he was bound with tape. A screwdriver was held at his back. Goods valued at more than $9000 were taken. The offenders were identified from CCTV footage (Form 1 offences).
On 18 April the three offenders entered an electronics store at Richmond. Samuel Samuelu was armed with a screwdriver with which he threatened employees of the store. One member of staff was kicked in the buttock and others were manhandled. Timothy Samuelu used a broom handle to smash glass cabinets. Cash and electronic equipment to the value of more than $18,000 was taken. Samuel Samuelu was subsequently identified by one of the victims as a participant in the robbery. Timothy Samuelu’s fingerprints and DNA placed him in JP’s vehicle which was used to convey the offenders to and from the premises which were robbed. Conversation which took place between the three offenders later that day was captured on a listening device (Count 3).
On 22 April 2002 the three offenders went to the Hi Tech World store in Blacktown in a stolen vehicle (Form 1 offences). Staff and a member of the public were threatened and instructed to lie on the floor. Property valued at more than $26,000 together with more than $3,000 in cash was taken during this robbery (Form 1 offences). A jacket was taken from a customer (Form 1 offences).
On 1 May 2002 the offenders returned in a stolen vehicle to rob the same premises which had been the subject of Count 1 (Form 1 offences). On this occasion the respondent Samuel Samuelu was armed with a rifle which was used to threaten staff. JP remained in the vehicle. Cigarettes and a small amount of money was taken (count 2). $300 in cash was also taken from a customer (Form 1 offences).
On 8 June 2002 all three offenders entered a video store at Richmond. Timothy Samuelu was armed with a screwdriver and Samuel Samuelu with a sledgehammer. More than $4,000 in cash and 30 DVD’s were taken from the business during the robbery (Count 4). Cash was also taken from several customers as well (Form 1 offences)
An off duty police officer and his brother witnessed the robbery and gave chase as the offenders left the store. The officer identified himself as a police officer before grabbing hold of JP. He then pulled him from the car in which the offenders were endeavouring to leave the scene. A struggle ensued during the course of which JP struck the officer on the head. He was also struck with some kind of object which caused him to fall to the ground, although at the time he was still holding onto JP.
Timothy Samuelu approached the officer and threatened to stab him with the knife if he did not let go of JP. The officer was then stabbed in the back by Timothy Samuelu (Count 6). The officer released his grip on JP who then got into the car. Whilst this was happening, the officer’s brother had hold of Samuel Samuelu who was attempting to get away. Timothy Samuelu then stabbed the officer’s brother in the shoulder (count 5). That man then released his grip on Samuel Samuelu and all three offenders escaped in the car. Both victims sought medical attention. The officer required four stitches to the stab wound in his back and remained in hospital for two days. Timothy Samuelu was identified from photographs by the officer.
The sentencing judge made the following observations concerning the objective gravity of the various offences:
It is apparent that these offences involve very considerable criminality indeed.
In addition to the offences involving robbery, there are offences involving the use of stolen vehicles, there are offences involving threatening individual people and, of course, maliciously wounding an off-duty police officer and an ambulance officer with intent to prevent a lawful apprehension of the offenders.
In saying that, of course, I am conscious of the fact that Samuel Samuelu is not charged with any offence in relation to Michael Prott. But it is apparent that any right-thinking member of the community would be appalled at this spree of criminal behaviour committed over a period of some months.
With respect to his Honour, I entirely agree.
The sentencing judge allowed an overall discount on sentence of 33 1/3% to each of the respondents. It comprised a discount of 25% for pleas of guilty entered at the earliest reasonable opportunity, each of them having pleaded guilty before a magistrate, and a further 8 1/3% for “the remorse value of that plea”. Although neither of the respondents gave evidence at the sentence hearing, their mother told the court that each of the respondents had expressed remorse to her.
The respondents were born in New Zealand to parents of Samoan origin. Timothy Samuelu who is now almost 22 was aged 19 at the time of the offences whilst his brother is now aged 23 and was 20 at the time. The family came to Australia in 1990. The atmosphere in the household was one of considerable hostility. The respondents’ father was a very violent man especially when intoxicated. Each of them was subjected to acts of brutality at his hands as was their mother. On one such occasion their father stabbed their mother as a result of which he was imprisoned for a number of years.
Timothy Samuelu had very considerable difficulties at school. During his earlier years he experienced learning difficulties. In high school he had behavioural problems and was suspended on about six occasions for fighting with other students. He left school in year 8 and left home at about the age of 13. Since leaving school he has only worked intermittently and then only in casual jobs. Each of them has a significant history of having abused illegal drugs and alcohol from an early age. Indeed it was against the background of drug addiction that the respondents committed the offences which are the subject of this appeal. The respondent Timothy Samuelu also has had problems with gambling. Psychometric testing reveals that his verbal intelligence falls in the borderline range and is higher than only 3% of the population although his non-verbal intelligence skills are in the average range. When he was 16 be became a father but tragically that child died from SIDS. He has subsequently fathered a son who lives with the child’s mother.
His brother Samuelu performed slightly better at school and remained there until year 10. He appears to have been in fairly regular employment albeit in unskilled positions. As I have said, he too has a lengthy history of drug abuse. He did manage however to complete 8 months out of a 10 month rehabilitation program at the William Booth Institute before he was discharged from that facility.
Neither respondent was assisted by his prior record. In 1999 and 2000 the respondent Timothy Samuelu was dealt with in the Children’s Court for possession of drugs and malicious damage to property. More significantly he was sentenced in February 2000 in the District Court to a total term of 4 years imprisonment with a non-parole period of 18 months in respect of offences of assault with intent to rob whilst in company causing wounding, and stealing a motor vehicle. Accordingly he was on parole at the time when these offences were committed.
The respondent Samuel Samuelu has an extensive criminal history. In 1997 he was subjected to a control order for 12 months in the Children’s Court in respect of 3 counts of robbery and a further count of assault with intent to rob. In 1999 he was again subjected to a control order in respect of offences of aggravated robbery, aggravated robbery with wounding and robbery in company. In 2000 he was placed on a good behaviour bond for 2 years in respect of offences of robbery, armed robbery with an offensive weapon and steal motor vehicle. In 2001 he was placed on a good behaviour bond for 3 years in respect of various offences of dishonesty in the Local Court. Later the same year he was sentenced to 12 months imprisonment with a non-parole period of 6 months for break, enter and steal and other offences. On 27 June 2002 his parole was revoked. In July 2002 he was given a 6 month fixed term in the Local Court for break, enter and steal. In November 2002 he was sentenced to 3 years imprisonment with a non-parole period of 2 years 3 months for an offence of armed robbery with an offensive weapon. The sentences which are the subject of this appeal were ordered to commence upon that expiration of that sentence. He was also on parole at the time of the commission of these offences.
In sentencing Timothy Samuelu the sentencing judge observed that:
…whilst he is not any longer a juvenile offender, the fact is that, at the time he committed these offences, he was nineteen years of age. It therefore follows that considerations of rehabilitation loom very large because, whilst it is true that in relation to juveniles considerations of rehabilitation generally outweigh considerations of general and specific deterrence, the situation does not change to the converse simply because someone turns eighteen years of age. In the case of a young offender, even a young adult offender, considerations of rehabilitation are very important and I take them into account in this case.
His Honour concluded that this respondent had reasonable prospects of rehabilitation by reason of his age and the fact that he had successfully completed various courses whilst in custody.
So far as Samuel Samuelu was concerned, his Honour observed that:
Again I have taken into account his age, as in my view being twenty at the time he committed these offences, considerations of rehabilitation do loom large with him, perhaps not quite to the same extent as in relation to his brother but they are very much matters where the community has a real interest in endeavouring to ensure that he does not commit further offences.
In respect of each respondent the sentencing judge made a finding of “special circumstances”.
The principles which govern the Court’s approach to Crown appeals are well established and do not require repetition in the present context. It is important that the sentencing discretion of individual judges is not unduly circumscribed. Furthermore considerations of double jeopardy cannot be ignored.
Notwithstanding those considerations, I am nevertheless of the view that the Crown has made good its submission that the sentences imposed by his Honour are, in the result, manifestly inadequate.
On any analysis of the matter, these were offences of very considerable objective gravity. The following features of the case had to be properly taken into account:
(a)          the fact that there were a number of offences each of which was in itself a serious example of criminal misconduct;
(b)          the fact that there were a large number of other serious offences on the Form 1. See Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 146;
(c)          the fact that each of the offences was committed whilst the respondents were in the company of each other and another offender;
(d)          the sums of money taken in the various offences were in some instances very considerable;
(e)          there was, as the sentencing judge found, a degree of planning involved in each of the armed robbery offences;
(f)           the fact that a firearm was used in relation to the commission of count 2 which accordingly attracted a maximum penalty of 25 years imprisonment;
(g) the conduct which gave rise to count 5 (and count 6 in respect of Timothy Samuelu) represented separate criminality of a very high order. It was an aggravating factor that one of those victims was a police officer. See s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999;
(h)          the respondents were each on conditional liberty at the time of the offences and each had a significant criminal record.
In my view the sentences imposed do not adequately reflect the objective gravity of these offences. On the other hand, it appears to me that the sentencing judge has taken a rather too generous view of the respondents’ subjective cases. It was clearly open to the sentencing judge to allow an appropriate discount on account of the pleas of guilty. That was particularly so given the timeliness of those pleas, the saving of court time that was thus occasioned and the sparing of witnesses from the ordeal of having to give evidence. See R vThomson & Houlton (2000) 49 NSWLR 383. In doing so each of the respondents thereby “facilitated the course of justice”. See Cameron v The Queen (2002) 209 CLR 339. Thomson & Houlton also contemplates that an overall total discount of up to 35% for a plea of guilty may be awarded in certain situations to cater for an additional component of remorse. I am inclined to the view that this was not a case however which warranted a further 8.3% discount on account of a display of remorse in addition to the 25% which had already been allowed for the matters which I have identified. The evidence of remorse was sparse and unremarkable. This was a case in which there were, for example, no spontaneous admissions of guilt by either of the respondents to the police. Moreover the pleas were entered in the face of an extremely strong Crown case which included statements in respect of each offence from the co-offender, JP. There was also other evidence which also linked the respondents to the various offences. It is not however necessary to reach a concluded view as to whether error has been established in respect of this matter bearing in mind the view I earlier expressed concerning the failure by the sentencing judge to reflect in the ultimate result the objective gravity of the offences.

I have already referred to his Honour’s observations concerning the desirability of recognising, in the sentencing process, the need to promote the rehabilitation of young offenders. However that principle must take its place alongside other important considerations. In R v AEM (Snr) & Ors [2002] NSWCCA 58, this Court said:
“It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society”. (at par 97)
It appears to me that in imposing the sentences which he did, the sentencing judge has placed undue emphasis upon the youth of the respondents. They were after all 19 and 20 years of age respectively at the relevant time with each of them having a history of serious criminal behaviour. Indeed counsel who appeared on behalf of the respondents very properly acknowledged that general deterrence remains of considerable significance in relation to armed robberies committed by young offenders. See R v Sharma (2002) 54 NSWLR 300.
There is also another consideration to which reference should be made. The sentencing judge, as I have said, referred to the sentences imposed upon JP. His Honour then referred to the matters which distinguished his circumstances from those of each of the respondent. Having done so, his Honour then said:
So, for those reasons, I do not think there is any true parity question before me. However, having said that one simply cannot, in sentencing of this nature, ignore his Honour Judge Bellear’s sentences and I have certainly had regard to them in relation to the sentences which I propose to impose.
There were in fact, as his Honour acknowledged, a number of matters that placed JP in a very different position from that of each of the respondents. The most significant feature of JP’s case was that he had received an overall discount of 60% from the otherwise appropriate sentence to reflect not only his pleas of guilty but also the very extensive assistance which he had provided to the authorities. It is unnecessary to refer to the details of that assistance except to say that it was of a very high order. JP was also younger than the respondents being 18 at the time, and unlike them, was not on conditional liberty at the time of the offences. Although he had a prior history of serious offences, they had all been dealt with in the Children’s Court
Although his Honour correctly observed that this was not a case of “true parity” it appears that in imposing sentences which are not much more severe than those imposed upon JP, his Honour has placed much greater weight upon the question of parity than the circumstances warranted. Indeed during the course of submissions his Honour remarked that “had I been sentencing myself without the co-offender having come before the courts I might well have imposed heavier sentences”. That comment certainly suggests that his Honour felt somewhat constrained in the exercise of his discretion by the sentences which Judge Bellear had imposed. Such an approach is indicative of error. This was a case in which considerations of parity ought to have assumed only marginal significance in the assessment of the appropriate penalties to be imposed upon the respondent.
The respondents stood for sentence in respect of a number of offences. The relevant principles to be applied where an offender faces sentence in respect of more than one offence are well established. See Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15. See also s 55(2) of the Crimes (Sentencing Procedure) Act 1999.
In giving effect to those principles, a sentencing judge has a considerable discretion in the way in which the individual sentences are structured. Ultimately what is critical is the overall effect of the sentences imposed. The sentencing judge was clearly alive to the relevant principles and to the need to comply with the dictates of Pearce. Nevertheless, as I have said his Honour has, in the result, imposed sentences which in my view are manifestly inadequate. The way in which the individual sentences were structured appears to have contributed to that result. Accordingly the Crown appeals must be allowed and the Court should proceed to re-sentence each of the respondents. No reason has been advanced which would justify the Court in declining to intervene in the exercise of its residual discretion. I would, as his Honour did, make a finding of “special circumstances”.
I propose the following orders:
Samuel Samuelu
1             Appeal allowed.
2             Confirm sentences in respect of counts 1 – 4.
3Quash sentence in respect of count 5. In lieu thereof fix a non-parole period of 3 years with a total term of 6 years with each term to commence on 25 December 2006. The total term will expire on 24 December 2012 and the non-parole period will expire on 24 December 2009 at which time the respondent will be eligible for release on parole.
Timothy Samuelu
1             Appeal allowed.
2             Confirm sentences in relation to counts 1 – 5.
3Quash sentence in respect of count 6. In lieu thereof fix a non-parole period of 4 years with a total term of 7 years with each term to commence on 16 December 2004. The total term will expire on 15 December 2011 and the non-parole period will expire on 15 December 2008 at which time the respondent will be eligible for release on parole.
I would in addition, direct the Registrar to bring the affidavit received by this Court from each respondent to the urgent attention of the Commissioner of Corrective Services with a recommendation from the Court that all proper steps be taken to afford each respondent the opportunity to undertake the rehabilitative courses to which his affidavit refers.
SULLY J: I agree with the orders proposed by Buddin J for the reasons expressed by his Honour and with the recommendation which is appended thereto.
SHAW J: I also agree.
SULLY J: The orders of the Court will be as proposed by Buddin J.

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LAST UPDATED: 24/09/2004

[2004] NSWCCA 331

23 September 2004