R v Shaun Robert Tuira

[2010] NSWDC 182

CITATION:	R v Shaun Robert TUIRA [2010] NSWDC 182
JUDGMENT DATE:	30 March 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 2 years. Balance of tem of 1 year.
CATCHWORDS:	CRIMINAL LAW - sentence - robbery of fast food restaurant - offence committed while on conditional liberty - plea of guilty at earliest opportunity - prior criminal record including sentences of imprisonment for similar offences - drug, alcohol and gambling addictions - no sentence but full-time custody appropriate
LEGISLATION CITED:	Crimes Act 1900 s 94 Crimes (Sentencing Procedure) Act 1999 s 50 Drug Court Act 1998 s 18B
PARTIES:	Regina Shaun Robert Tuira
FILE NUMBER(S):	2009/210126
SOLICITORS:	Mr Kernick for the NSW Office of the Director of Public Prosecutions Mr Debattista (Legal Aid Commission) for Mr Tuira

JUDGMENT

1. I am sentencing a young man whose short life so far has been marred by addictions to alcohol, drugs and gambling. He has been sentenced by the courts before, including two gaol terms.

2. On this occasion, while he was on a bond from another court and therefore at large in the community on trust, he took the opportunity to hold up a takeaway shop one morning and steal from the sole employee who was working there at the time.

3. Shaun Robert Tuira is now aged twenty three. He has been charged and pleaded guilty to the crime of robbery which is made into an offence under s 94 of the Crimes Act 1900. Parliament has fixed a maximum sentence of fourteen years imprisonment to that crime. It is important for judges to set out what happened in cases where they are sentencing people.

4. This crime occurred on a Friday morning 14 November 2008. A member of staff of the Subway takeaway store started work at 7.30 that morning at Subway Gladesville on Victoria Road. He was the store manager. He had to get ready to open the store. He was still the only staff member three quarters of an hour later when Mr Tuira came in and made enquiries about buying some food. He bought some food and a drink and handed over twenty dollars.

5. As soon as the member of staff took the money and opened the cash register drawer, Mr Tuira pushed the swinging door from the public area to the service area which pushed the member of staff away. Mr Tuira said “Back off, back off”. He asked where the cash was, was told there was none but then discovered a safe box which contained the cash. Mr Tuira found out from the victim of this offence that he was the only person in the store at the time. Mr Tuira said to the victim “I’m sorry I have to do this. I’m desperate. Where’s the phones?”

6. He did not get a reply but took the phones from the store and the victim’s mobile phone which was nearby. The wallet was also there. The victim asked Mr Tuira not to take his ID and Mr Tuira handed back the wallet. All in all Mr Tuira secured over $700 in cash as well as the mobile phone.

7. He had taken a drink from a cup which the police analysed after they attended the scene. They were able to match DNA left on the cup with Mr Tuira and some months later also the fingerprints. In addition the victim identified a photograph of Mr Tuira as the offender. They tracked Mr Tuira down and attempted to serve him with a summons or warrant but he did not respond. On 21 September 2009, almost a year after the crime, he handed himself in at Campbelltown police station and was charged.

8. Mr Tuira plead guilty to the charge, at what is agreed was the earliest available opportunity. He has, as I have already said, committed crimes in this State before. His criminal record is not a good one for such a young man. He was dealt with as a child and then as an adult for various offences including assault. Significantly he was also dealt with by this court for armed robbery which had occurred when he was a child. He received a suspended sentence for that in 2004. He was sent to gaol in 2006 for malicious wounding as well as for common assault and other crimes. In 2008 he was given a suspended sentence for assaulting an officer in the execution of duty. That suspended sentence was for eighteen months and it was while he was on the bond which was attached to the suspended sentence that he committed this crime.

9. Mr Debattista who appears today for Mr Tuira has tendered a helpful report from Dr Emma Collins, a clinical and forensic psychologist. Dr Collins reviews Mr Tuira’s background and notes that he was brought up in New Zealand in an environment that included discord and exposure to substance abuse and violence.

10. He came to Australia with his parents when he was four. His parents separated when he was fifteen. He attended a number of primary schools but left school, having completed only up to about year 8. His employment record is relatively good when he has not been in custody and Dr Collins observes that Mr Tuira told her that he has always found it easy to secure and maintain his employment. He has always lived at home.

11. He turned to illegal substances when he was eleven or twelve years old by starting to smoke cannabis, which had become a daily habit by the age of eighteen. He was taking amphetamines and ecstasy by the time he was nineteen and had commenced a pattern of binge drinking on weekends from the age of fifteen. In addition he developed a serious gambling problem. It was in fact because he had no money that he committed this particular crime. The money had been gambled away.

12. He told Dr Collins that he had attended a couple of sessions of counselling as part of a sentence condition for one of the previous times in court but he did not find it to be helpful. He did not wish to participate in a more intensive residential rehabilitation program and told her that he would participate in substance abuse treatment if recommended by the court. He expressed regret for his behaviour saying that he had acted desperately. Dr Collins recommended a couple of programs which are available in custody. She thought that securing employment when he leaves custody will be essential in providing him with a focus.

13. Mr Kernick who appears on behalf of the prosecutor has made available statistics from the New South Wales Judicial Commission to guide me in sentencing Mr Tuira.

14. Mr Debattista drew my attention in his submissions to his client’s early plea of guilty and acknowledged the objective seriousness of the crime he had committed but pointed out that there was no actual violence or threats and that the only thing which happened to the victim was to be pushed back by the opening of the gate or door between the public area and the service area.

15. There was, Mr Debattista argued, rudimental planning, if any. Mr Kernick, on the other hand, argued that it was an opportunistic offence but there had been some time for Mr Tuira to speak to the victim and wait for the appropriate opportunity. I think there is some substance in both submissions. I would not be satisfied beyond reasonable doubt that the offence was accompanied by any significant planning at all but it was one where the offender, whilst he was at the scene of the crime, waited for the appropriate opportunity.

16. Mr Debattista acknowledged his client’s addictions and argued that the guideline judgment from the Court of Criminal Appeal in Henry’s case was of limited assistance. He acknowledged the seriousness of the fact that his client was on a bond at the time of this crime which must be taken into account. He pointed to family support for his client indicating that Mr Tuira’s father was here in court and argued that the prospects of his client rehabilitating himself were good. He pointed to his client’s various expressions of remorse and argued that, because of his client’s age and need for rehabilitation, I should fix a non-parole period which is shorter than the usual period of three-quarters of the head sentence.

17. Mr Kernick agreed that Mr Tuira is entitled to the full discount for his plea of guilty but also argued that given that Mr Tuira has served custody before, his age must be given some limited weight as well as his prospects of rehabilitation.

18. Both Mr Debattista and Mr Kernick agreed that no other sentence than full-time custody was warranted and I agree in that as well. Mr Debattista pointed out that his client had not been the subject of any disciplinary action since he has been in custody.

19. Taking into account the aggravating factor of the crime being committed whilst Mr Tuira was on a good behaviour bond, as well as to some extent his criminal record but also taking into account his remorse, I would regard an overall sentence of four years as being appropriate in this case.

20. However Mr Tuira has pleaded guilty at the earliest available opportunity and has made the administration of justice more manageable in this State and is entitled to a discount for that. The discount, it is agreed, should be the maximum so I propose to discount that four year sentence by twenty five per cent. The appropriate sentence which I will fix will be three years imprisonment.

21. I agree with Mr Debattista’s argument that there are special circumstances which warrant some adjustment in the non-parole period. Although I have limited optimism about his client’s commitment to rehabilitation, I think given his age he should be provided with every opportunity. I regard an appropriate non-parole period as two years imprisonment which I will fix in this case.

22. I am going to sentence you now Mr Tuira.

23. I will date the sentences from 21 September 2009 when Mr Tuira went into custody for this offence. I set a non-parole period of two years to commence on 21 September 2009 and to expire on 20 September 2011. The balance of the term will be one year to commence on 21 September 2011 and to expire on 20 September 2012.

HIS HONOUR: Just have a seat Mr Tuira. In a moment I will explain that to you. Now Mr Debattista and Mr Kernick because it is three years or less I think I make an order that he be released on parole at the end of two years.
DEBATTISTA: That’s so your Honour. Effectively your Honour actually makes a parole order.

HIS HONOUR: I do.
DEBATTISTA: Yes.
HIS HONOUR: Now the conditions of parole? Be of good behaviour, notify change of address, report to court and accept supervision particularly regarding drug, alcohol and gambling.
DEBATTISTA: My friend might be able to assist. I think there are standard conditions which apply in any event which do encompass some of what your Honour has suggested but certainly if your Honour wanted to specifically require that he attend counselling or other programs, I think that would be appropriate.
HIS HONOUR: The other thing - what do you say Mr--
KERNICK: Sorry your Honour I think what you’ve just mentioned is pretty much standard with non-parole, off the parole--

HIS HONOUR: Gentlemen I don’t know whether this is appropriate or not but what about the Drug Court? Where does your client live normally?

DEBATTISTA: I have to just grab brief instructions on that your Honour. In Campbelltown your Honour.

HIS HONOUR: Say that again.
DEBATTISTA: That is within the zone.
HIS HONOUR: Where is he?
DEBATTISTA: Campbelltown, your Honour.
HIS HONOUR: Yeah.
DEBATTISTA: Yeah.
HIS HONOUR: I think that’s one of the areas, isn’t it?
DEBATTISTA: I believe it is yes.
HIS HONOUR: And I think what I can do is just refer him for assessment--
KERNICK: For assessment your Honour yes. Given the nature of his prior offences, the armed robbery and the assaults, it may rule him out but--

HIS HONOUR: Yes.

KERNICK: But at least if he’s given the opportunity of assessment.

HIS HONOUR: Yes. I think I’m obliged to under the Drug Court Act.

KERNICK: I think your Honour may have visited this matter yesterday as a matter of fact in a judgment that your Honour handed down where the offender was referred to the Drug Court--

HIS HONOUR: Yes.

KERNICK: --for not un-similar prior histories as this gentleman has.

HIS HONOUR: Yes that’s right.

24. All right under s 50 the Crimes (Sentencing Procedure) Act 1999 I make an order directing the release of Mr Tuira on parole on 20 September 2011. His parole will be conditional. The conditions are:
1 That he be of good behaviour;
2 That he notify the Registrar of this Court of any change in his residential address;
3 That he attend court if called upon to do so;
4 That he accept supervision from the New South Wales Probation and Parole Service and accept any reasonable recommendations or directions from an officer of that service regarding rehabilitation in the areas of drugs, alcohol and gambling.

25. In addition under s 18B of the Drug Court Act 1998, I have ascertained that there are grounds on which the Drug Court might find Mr Tuira to be an eligible convicted offender and I refer Mr Tuira to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

HIS HONOUR: Now before I explain all that to Mr Tuira, are there any factual errors that need to be clarified or matters and is the mathematics correct?
DEBATTISTA: Your Honour the mathematics is correct. Just one matter in relation to the parole order that you propose to make. In relation to the condition requiring Mr Tuira to notify the court registry of any changes in address, my understanding is ordinarily, notification would be directly to the Probation and Parole Service.

HIS HONOUR: Okay.
DEBATTISTA: Perhaps as an administrative matter.
HIS HONOUR: I will amend the order to require him to notify the Probation and Parole Service thank you.

DEBATTISTA: Thank you.
HIS HONOUR: Thank you. Mr Kernick?
KERNICK: Your Honour there is one slight matter. I don’t know how successful it will be. Got instructions that there is a claim for compensation for the offender.

HIS HONOUR: Yes I saw that. I’ll come back to that.

KERNICK: Thank you your Honour.

HIS HONOUR: So far as the sentence is concerned?

KERNICK: No your Honour.

HIS HONOUR: Nothing - right.

KERNICK: There’s nothing further.

HIS HONOUR: Yes and which office of Probation and Parole is nearest when he’s released?

DEBATTISTA: Believe there is an office in Campbelltown itself.

26. All right, this is a further condition: that he report to the office of the Probation and Parole Service at Campbelltown within seven days of his release from custody. All right.

HIS HONOUR: Now Mr Tuira you have got three years, all right. It would have been four but because you pleaded guilty I’ve reduced it to three. Your non-parole period that you have to serve is two years, that starts along with the sentence last year when you went into custody, 21 September. So your two years finishes on 20 September next year, 2011.

Normally for a three year sentence your non-parole period would be three-quarters of three years and that would be twenty-seven months, not twenty-four months but I’ve adjusted it down a bit because of your age and to allow a bit more time, one year instead of less on parole to try to get your life back together.

I’ve ordered that you be released on parole on 20 September next year and once you’re released on parole you’ve got to be supervised by the Probation and Parole Service. They know what they’re doing. They’ll help you if you want to be helped. You’ve got to tell them if you change your address. You’ve got to remain of good behaviour and you know if you get into trouble that that will affect your parole. It could be revoked.

And I asked that they give particular attention to your drug and alcohol and gambling problems which have obviously caused you a lot of trouble and which you need to get on top of whilst you’re still young. Otherwise you’ll just be sitting there in that dock for a lot more years to come and you don’t want that. You want to get on with your life. It sounds as though you’re able to hold down jobs pretty when you get them and that’s something to build on.

Seven days after you’re released, you’ve got to turn up at the Campbelltown Probation and Parole Service for them to get the supervision underway. So do you understand that? Your sentence of three years finally expires on 20 September 2012 even though you’ll be hopefully on parole then. That’s when your sentence expires and your non-parole period comes up 20 September next year. All right.

Anything else so far as the sentence is concerned?

KERNICK: No your Honour.

HIS HONOUR: No. Now, compensation did you say? What’s the--

KERNICK: Yes your Honour.

HIS HONOUR: What’s the legislation I look at.

KERNICK: Bear with me your Honour.

HIS HONOUR: Yes. Is it confiscation or reparation or--

KERNICK: Compensation under ancillary orders your Honour of the Criminal Procedure Act.

HIS HONOUR: Okay. Sure. It wouldn’t be the Criminal Injuries Compensation Act--

KERNICK: No your Honour. Your Honour that is an optional - I had brief discussions with my friend outside as well and your Honour in all honesty or you know, I’d find it difficult that the offender would be in a position in the near future--

HIS HONOUR: I’d be surprised.

KERNICK: So perhaps--

HIS HONOUR: If you don’t want to press the application then I won’t--

KERNICK: No I think the best option might be just to withdraw the application for compensation and it can be claimed elsewhere.

HIS HONOUR: ..(not transcribable).. Okay Mr Kernick. There you are Mr Tuira you don’t have to pay back the seven hundred and something dollars.

KERNICK: Thousand dollars.

HIS HONOUR: Now is there anything else gentlemen?

DEBATTISTA: No thank you your Honour.

KERNICK: No thank you.

HIS HONOUR: Thank you both for your assistance and good luck Mr Tuira. Try to stay out of trouble.

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