R v Takai-Taufu

[2008] NSWDC 293

CITATION:	R v TAKAI-TAUFU [2008] NSWDC 293
JUDGMENT DATE:	13 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	SENTENCE- CRIMINAL LAW - particular offences - property offences - robbery - CRIMINAL LAW - particular offences - offences against the person - other offences against the person - assaults
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Antonio v R [2008] NSWCCA 213 R v Henry [1999] NSWCCA 111 Pearce v The Queen [1998] HCA 57 R v Boulder [2008] NSWCCA 222
PARTIES:	Regina Takai-Taufu
FILE NUMBER(S):	2008/11/0028; 2008/11/0092
COUNSEL:	Mr Grogan (Crown)
SOLICITORS:	Mr Voros (for the accused)

SENTENCE

1 The offender is before the Court for sentence in relation to two incidents.

2 On 26 June 2008, a jury found the offender guilty of three offences that occurred on 25 November 2005 at Marrickville.

i. Robbery in company. The victim was Albert Franklin. A black wallet and contents, including about a hundred dollars in cash was stolen.
ii. Assault occasioning actual bodily harm to Mr Franklin;
iii. Stealing a motor vehicle, the property of Mr Franklin.

3 The offender pleaded guilty in the Local Court and was committed for sentence for the offence or robbery in company on 12 May 2007 at Darlinghurst. The victim was ME. A mobile telephone, keys, credit card, driver’s licence and cash were stolen.

4 The maximum available penalties are:

i. Robbery in company - twenty years imprisonment;

ii. Assault occasioning actual bodily harm - five years imprisonment;

iii. Steal motor vehicle - five years imprisonment.

No standard non-parole period applies to any offence.

5 In relation to the incident on 12 May 2007, the Crown concedes that the offender entered a plea of guilty at the earliest reasonable opportunity and is entitled to a 25% discount for the utilitarian value of the plea.

6 The offender has been in custody since 12 May 2007. The first sentence should commence on that date.

7 In relation to the incident on 25 November 2005, the brief facts are that the victim was a sixty-nine year old taxi driver. At about 5.45am in the morning, he was working in the inner-city. He stopped his taxi at traffic lights in Surry Hills. Two men, one of whom was the offender, jumped into the car. The offender entered the rear seat. The co-offender, who has never been identified, entered the front passenger seat. Initially, the two men asked the taxi driver to take them to Dulwich Hill. However, in the course of the trip they redirected the victim to a dead-end street in Marrickville.

8 The co-offender demanded money from the victim. The victim gave him one hundred dollars in cash. The victim was directed to get out of the car. He did so. The offenders got out of the vehicle. The co-offender demanded the victim’s car keys. The victim handed his keys to the co-offender.

9 The offender demanded the victim’s loose change. He reached towards the pocket of the victim’s shirt, feeling for its contents. In the course of so doing, he left a DNA trace, the means by which he was later identified. The victim handed his coins to the offender.

10 The offender told the victim to lie down on the road. The victim hesitated for a moment. He was uncertain about the danger, given the proximity to his vehicle. When the victim hesitated, the offender struck one blow to the face with significant force. It impacted the victim’s face just under the left eye and caused a substantial injury. The striking constitutes the assault occasioning actual bodily harm. The offenders then drove from the scene in the victim’s cab. The co-offender was in the driver’s seat and the offender was in the passenger seat. The taking of the vehicle constitutes the offence of steal motor vehicle. The offender was guilty on the basis that he was travelling as a passenger, knowing that the vehicle had been taken without the consent of the owner. The cab was located nearby, about thirty minutes after it had been taken. I accept the offender’s evidence that he has an almost complete lack of memory in relation to the incident because he was so affected by alcohol or drugs.

11 The victim read a victim impact statement. The victim felt nervous after the incident when carrying out his job as a taxi-driver. That is perfectly understandable. He continues to experience facial numbness. There is a depression in the cheek-bone area and one of his eye droops due to nerve damage. The depression could be assisted by surgery but the nerve damage is permanent.

12 As the objective seriousness of the offence of robbery in company on 25 November 2005, there was no actual violence committed in the course of the robbery itself. The assault occasioning actual bodily harm is a separate matter. The victim felt fearful primarily because the offenders appeared aggressive in that they were, as the victim described them, “hyped-up”. The co-offender was the person who took the initiative. It was he who sat in the front seat of the cab, made the demand for money and drove the vehicle from the scene. I accept that the offence was planned at the last minute, probably as the two men were driving along in the taxi. There was conversation between them in the taxi and, in the course of the journey they directed the driver to change routes from Dulwich Hill to Marrickville, where the incident occurred. The robbery was very serious because of the vulnerability of the victim. A taxi driver is someone who, because of the circumstances of his or her employment, places him or herself in a vulnerable position, and that vulnerability requires the protection of the law. In addition, in this case, the victim was sixty-nine years old and somewhat more vulnerable because of his age. The second matter that renders the robbery in company of particular seriousness is that the offender was on conditional liberty at the time that the offence occurred. He was on a s 9 bond and a s 12 bond. Each of those bonds was imposed earlier in 2005.

13 The assault occasioning actual bodily harm is a matter of some seriousness. The conduct was a completely gratuitous assault against an apparently cooperative victim. It is true that there was only one striking, but the victim was struck with considerable force. He is left with significant and permanent injury, albeit injury short of an injury amounting to grievous bodily harm. The seriousness of the assault occasioning actual bodily harm is such that it calls for some partial accumulation of sentence.

14 The steal motor vehicle arises from the offender travelling for a short distance as a passenger in a vehicle that he knew had been taken without the consent of the owner. It is not a particularly serious matter. The vehicle was recovered soon after the incident.

15 In relation to an offence of robbery in company, the guideline judgment in R v Henry [1999] NSWCCA 111must be considered. There are similarities between the typical scenario discussed in Henry’s case and the facts of the incident on 25 November 2005. In each case, the offender was a young offender with limited criminal history. There was limited planning and limited actual violence. In this case, there was no violence in the sense that the assault is the subject of a separate charge. In each case, the victim was a vulnerable victim and a small amount of property was taken. In the present case, unlike Henry’s case, there was no plea of guilty and the offender was on conditional liberty at the time that the offence occurred. However, it could be argued that a robbery in company is generally less terrifying for a victim than an armed robbery. Overall the level of culpability in the present case is similar to that considered in Henry’s case.

16 In relation to the incident on 12 May 2007, the facts have been agreed. At the time, the offender was twenty years old. It was a Friday night. He had been binge drinking and consuming methamphetamine. He has no clear recollection of the period of twenty-four hours up to and including the time that the offence occurred.

17 At about 6.10pm on a Saturday night, the victim was in a hotel at Taylor Square, Darlinghurst. He entered a toilet cubicle. Unfortunately, the lock on the cubicle was not working. The offender and the co-offender Timo forced their way into the cubicle. The offender grabbed the victim by his throat and punched him with a closed fist, demanding money. The co-offender stood directly behind the offender reinforcing the threat. The victim handed over the property in his possession.

18 Nevertheless the offender continued to punch the victim. The victim raised his hands to protect his face. The offender demanded that the victim drop his arms and again punched the victim. In all, six or seven punches were delivered. The victim turned out his pockets to show that he had no other property.

19 At that stage, the co-offender said “Let’s go”. In effect, the co-offender terminated the confrontation. The offender told the victim to remain where he was for ten minutes. The offender also delivered the significant verbal threat, “I’m going to kill you if you call the cops or the people from the pub,” a threat that the co-offender repeated.

20 After a few minutes, the victim emerged, very distressed. The police were called. The offender and co-offender were identified by hotel CCTV. Two hours later, they were arrested in the vicinity. The victim’s mobile telephone was found in the possession of the co-offender.

21 In relation to the objective seriousness of this offence, I accept that the offence was an opportunistic offence. The offender and co-offender, decided to follow the victim to the toilet cubicle at the last minute. As it transpired, that cubicle had a lock that did not function. However, actual violence was used in that the victim was grabbed by the throat and punched. Furthermore, after the property was handed over, there was gratuitous violence in that the offender continued to punch the victim. A serious verbal threat was made, following the offence warning the victim that he ought not to report the matter. The offender was the person who took the initiative. The co-offender terminated the incident by proposing that they should leave. At the time the offence occurred, the offender was still on conditional liberty pursuant to the 2005 s9 bond.

22 The Henry guideline judgment is to be considered. The matter is a robbery in company as opposed to an armed robbery, armed robbery being the offence that was considered in Henry case. The victim in this matter was not in a vulnerable position per se, in that he was not a taxi driver or a person working at a service station late at night, or anything of that nature. However, the circumstances were very serious because actual violence was employed and, after the offence, there was associated gratuitous violence and a serious verbal threat.

23 There was no victim impact statement provided, nor was the Court given any information as to any ongoing difficulties suffered by the victim. However, the incident must have been very traumatic for the victim. There must have been some short term emotional upset at least.

24 In July 2004, when he was just eighteen years old, the offender was charged with offences of malicious damage and taking and driving a vehicle without consent of the owner. In October 2004, he was charged with receiving stolen property. On 19 May 2005 he received community service orders and a two year s 9 bond in relation to the offences committed in July 2004. In July 2005, he received a sixteen month sentence in relation to the receiving offence, but that sentence was suspended under s 12 and he was released into the community. On 25 November 2005, he committed the offence that went to trial. About two weeks later, on 10 December 2005, the offender was arrested and charged with another matter. He was bail refused. He remained in custody for almost exactly twelve months, until 7 December 2006. Having been acquitted of the charge, he was released. Five months later, on 12 May 2007, he committed the second offence before the court. He was arrested on that day and has been in custody ever since.

25 It is appropriate that the sentences that I impose commence on 12 May 2007, the date when the offender went into custody. The period that the period that he spent in custody from December 2005 to December 2006 cannot be taken into account in any direct way as it relates to an entirely different matter. However, particularly given the age of this offender I do consider it relevant to observe that, since December 2005, when he was nineteen years of age, he has been in the community for a period of only five months, from December 2006 to May 2007. The overall picture of incarceration is relevant when considering how the sentences should be structured.

26 The offender was born in Tonga. When he was very young, his mother left him and his twin brother in the care of his maternal grandparents in Tonga. The offender and his twin brother remained with the maternal grandparents until they were eleven years old. At that time, both of the maternal grandparents died. The offender and his twin brother were sent to Australia to live with their mother. She was a woman whom they did not really know. She had remarried and given birth to three children in Australia. The offender arrived in Australia somewhat traumatised by the death of his primary carers, to be placed in the care of someone whom he did not really know in a country where he barely spoke the language. Fortunately, the offender did form some bonds with his re-established family, and in fact became quite close to his stepfather in Australia.

27 The offender has a four-year-old daughter of a relationship that ended in 2006. He remains in contact with his former girlfriend and the Court has been told that there are some prospects of reconciliation. The offender is unhappy because he has been unable to maintain regular contact with his daughter.

28 The offender was educated to Year 12. After leaving school he obtained occasional labouring work, work as a removalist and similar types of unskilled employment.

29 The offender was a gifted rugby league player. He aspired to become a professional footballer. In 2003, he suffered the double trauma that his stepfather, to whom he had become close, died. Second, he failed in an attempt to gain selection for a football team that may have resulted in a professional football career. 2003 was a very difficult period in the offender’s life.

30 The offender’s drug and alcohol abuse worsened in 2003. He had been a heavy drinker since high school, engaging in binge drinking. Unfortunately, binge drinking is frequently associated with the playing of football, and that has been the case for the offender. He has engaged in heavy binge drinking at weekends, often at the club where he has played football. At weekends, he consumed up to 150 standard drinks in the course of a thirty-six hour period, a staggering level of consumption. The offender now appreciates that the culture of heavy drinking, particularly at the football club and among his family and friends, is a major problem for him. Indeed, as the author of the pre-sentence report notes, the offender’s entire criminal history is related to alcohol and/or drug abuse. In March 2007, the offender sustained a stabbing injury to his back when he tried to break up a fight. That led to a three-week hospital admission and removal f kidney and spleen. The offender has been informed that because of the surgery he is particularly unsuited to drinking large amounts of alcohol.

31 When the offender was acquitted and released in December 2006, his alcohol use rapidly escalated. He began using ecstasy and ice. Although the author of the pre-sentence report says that the offender has limited insight into his problems, a more recent report from Justice Health in July 2008 describes the offender as having considerable insight into his problems with alcohol and to appreciate the difficulties that he will face upon his release because of the heavy drinking among his peer group.

32 The Court has been provided with a report from a psychologist. It describes the offender as follows (p 7):

“The impression gained of Mr Takai-Taufu is of a man of below average adaptive intelligence and with equivalent interpersonal and communication skills. He is able to superficially converse on a range of subjects. He seems to possess a positive sense of self and seems to be self-assured with a resilient character. He did not blame the world or anyone for his lot in life or for his current circumstances. He is well-informed about personal responsibilities and the legal process he is facing. He argues that as a person he has many good qualities.”

In conclusion the author states;

“It would seem that the prognosis of Mr Takai-Taufu is dependent upon him participating in a residential rehabilitation program. He is completely uninformed about issues relating to relapse prevention, and he acknowledges his susceptibility to the influence of his cultural peer group with whom he will reform relations upon his release from custody. The major trigger to relapse is returning to the environment in which the substance abuse occurred, and this will occur in his case. He is accepting of completing a residential rehabilitation program to enhance his chances of controlling his substance abuse and his offending. He has intentions of pursuing his football career and gaining regular employment. He has strong supports in his family and will be able to reside with his mother. He expressed genuine remorse and was able to expound with significant insight into the harms he caused the victims. He appeared to be genuinely sorry for his actions.”

The offender has expressed his remorse and shame at the injury he has caused to the victims. He has expressed those sentiments to a number of persons.

33 The co-offender in the offence of 12 May 2007, Mr Timio, received a four year sentence with a two year non-parole period. That followed a late plea of guilty on the day when the matter was fixed for trial. The percentage discount for the plea of guilty is not known, but I infer that it was in the range of 10-15%, given the timing of the plea. Her Honour took the view that Mr Timo played a significantly lesser role in the offence. He did not deliver the punches and he encouraged the offender to leave the scene. On the other hand, Mr Timo’s criminal history is far worse than that of this offender. He had convictions for aggravated robbery with wounding and armed robbery. He had spent a period of approximately four years in custody and was on parole at the time that he committed the offence of 12 May 2007. His subjective circumstances are not known, but he must have had a significant problem with drugs and alcohol because her Honour referred to the need for treatment in that regard as a special circumstance.

34 The Crown and the offender’s legal representative submitted, and I agree, that when one balances the subjective and objective facts for Mr Timo with those for this offender, there is little difference and that it is appropriate to impose the same sentence.

35 In sentencing the offender for each of the incidents, I take into account the sentencing purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Relevant purposes are punishment, accountability, denunciation for the crime and recognition of the harm done to the victims and to society. Rehabilitation is of significance as the offender is a young man with deep-seated personal problems, but it should not be given such significance as would overshadow other sentencing purposes. In relation to general and specific deterrence, insofar as such considerations can operate in the case of highly intoxicated persons, they are purposes to be acknowledged. The community regards with abhorrence offenders who take advantage of victims in vulnerable positions such as that of Mr Franklin, who was a somewhat older person driving a taxi alone in the early hours.

36 I am required to take into account the relevant aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act. I have noted most of the relevant considerations. In referring to them again it should not be thought that I am double counting them. The relevant aggravating features in relation to the 2005 offence of robbery, that being the most serious matter, are that the offender was on conditional liberty and the victim was a vulnerable person. In relation to the 2007 robbery matter, the aggravating features are that the offender was on conditional liberty and there was actual and gratuitous violence associated with the offence.

37 In relation to mitigating features, in each case, the offence was impulsive and involved limited planning. I accept that there are reasonable prospects of rehabilitation. The offender’s criminal behaviour is very closely associated with drug and alcohol abuse. He has taken the first step to rehabilitation in that he has acknowledged that he has a problem, he has gained some insight into the circumstances which lead to drug and alcohol abuse, namely the environment at the football club and among his particular peer group. Whether he can translate insight and acknowledgement into action remains to be seen. The offender is remorseful in the sense referred to in a s 21A(3) of the Crimes (Sentencing Procedure) Act.

38 Unfortunately, the offender does not qualify for the Drug Court Correctional Centre because he does not have enough pre-existing serious matters.

39 I have considered the judicial statistics in relation to sentencing patterns for offences of the type for which I am sentencing the offender. I have perused two recent decisions of the Court of Criminal Appeal, Antonio v R [2008] NSWCCA 213, and R v Boulder [2008] NSWCCA 222.

40 I consider that there are special circumstances, they being the offender’s youth, the fact that he has not previously served a sentence of imprisonment, the need for there to be a long period of support in relation to drug and alcohol and emotional issues when the offender does re-enter the community, and the total picture of his incarceration.

41 Because I am sentencing the offender for a number of offences I need to take into account (in accordance with Pearce v The Queen [1998] HCA 57 the total criminality and structure the sentences so as to appropriately reflect the total criminality.

42 Would you please stand. Mr Takai-Taufa, you are convicted of each of these matters. In relation to the 2007 offence, you are sentenced to a non-parole period of two years from 12 May 2007 to 11 May 2009. There is a balance of term of two years, the sentence will expire on 11 May 2011. In relation to the assault occasioning actual bodily harm in 2005 you are sentenced to a non-parole period of twelve months from 12 November 2007 to 11 November 2008 and a balance of term of twelve months. That sentence will expire on 11 November 2009. In relation to the steal motor vehicle, you are sentenced to a fixed term of twelve months’ imprisonment from 12 November 2007 to 11 November 2008.

43 In relation to the 2005 robbery, you are sentenced to a non-parole period of two years from 12 November 2008 to 11 November 2010 and a balance of term of two and a half years, which means that the sentence will expire on 11 May 2013.

44 The effect of these sentences is that you are sentenced to a non-parole period of three and a half years and a total sentence of six years. You are eligible for release to parole on 11 November 2010.