R v Tamalemai

[2015] NSWDC 443

District Court

New South Wales

Medium Neutral Citation:	R v TAMALEMAI [2015] NSWDC 443
Hearing dates:	11 September 2015
Date of orders:	11 September 2015
Decision date:	11 September 2015
Jurisdiction:	Criminal
Before:	TUPMAN DCJ
Decision:	Non-parole period of 2 years and 6 months; Parole of 18 months; Overall term of imprisonment of 4 years.
Catchwords:	CRIMINAL LAW – Sentence – Armed robbery – Committed in company – Armed with knife – $888 in cash stolen – Cigarettes worth approximately $1,460 – Petrol station – Threats made to victim – Limited planning – Early plea of Guilty – Significant criminal record – Drug addiction.
Legislation Cited:	Crimes Act, 1900, ss 97(1).
Cases Cited:	R v Henry (1999) 46 NSWLR 346.
Category:	Sentence
Parties:	Fassau Michael Tamalemai   The Crown
Representation:	Solicitors: F/W- Mr Cruickshank Cr- Mr Shaw
File Number(s):	2015/00008630

JUDGMENT

1. HER HONOUR: The offender is before me for sentence following his plea of guilty in the Local Court to one charge of armed robbery committed on 23 December 2014 at Yagoona. It is an offence contrary to s 97(1) of the Crimes Act, 1900 and as such carries a maximum penalty of 20 years imprisonment.

2. The relevant facts are that the offender with another person went to the BP Service Station in the Hume Highway at Yagoona in the early hours of 23 December 2014. That Service Station had its doors locked at the time but there was one man working as a console operator. They knocked on the front door and the console operator thought they were customers so he let them in. This occurred about 2.00 am. Both of them approached the counter. Once at the counter the offender produced a brown handled silver bladed knife which was about 20 centimetres long. He then dived head first over the counter through to the console where the victim was standing. There are photographs of his doing this from the CCTV footage. It must have been terrifying for the console operator to have been victimised in this way. The offender was not disguised in any way and was not wearing gloves. As he did this he left his palm print on the counter.

3. Once he got over the other side he pointed the knife at the victim, swore at him and demanded the money. The victim complied and he swore at him again and told him to put the money in a bag and do it fast. The victim, not surprisingly, was scared that he might be stabbed as the offender was still pointing the knife at him. So he took a plastic bag and started filling it with cash from the register. The offender continued to yell at him to hurry up and swore at him again and he then also took the cash drawer out of the register and began emptying the cash into the bag.

4. After that was finished he demanded cigarettes, he swore at the employee again and asked for the cigarettes and said “I’ll smash you, I’ll kill you” and he was pointing the knife at the victim whilst he did this. The victim opened up the cupboard and began putting packets of cigarettes into the same bag that contained the money. Once that was full the offender jumped back over the counter where the other man had been standing and they both ran out of the store and ran along the Hume Highway.

5. The victim rang police who arrived, took the CCTV footage and developed a palm print with a fingerprint which later matched the offender. He became aware that the police were seeking to talk to him as a result of this and on 10 January 2015, with that knowledge went to Bankstown Police Station and handed himself in. He was arrested and cautioned and participated in an interview. He has been bail refused since then. Altogether the sum of $888 in cash was stolen and cigarettes to the value of approximately $1,460. It would appear that none of that has been recovered.

6. This is clearly a serious offence as the 20 year maximum penalty indicates. This offence does not display any significant level of planning. Clearly enough he planned to commit the offence and took a knife with him to do so, but he did not wear a disguise and he did not seek to prevent himself from being discovered because he left his palm print on the counter. It is of course aggravated by the fact that it was additionally committed in company, although on this occasion the presence of the second person does not appear to have added in any substantial way to the criminality of the offence.

7. The amount of property stolen is not particularly significant. There were threats made to the victim which somewhat aggravates the nature of the offence. No doubt the victim was particularly frightened. It must be a most unpleasant job to work as a Service Station console operator at 2 o’clock in the morning, not the least reason being that people like this offender commit robberies on these Service Stations and regrettably all too often they are in suburbs like Yagoona and Bankstown.

8. People should be entitled to pursue legitimate employment without running the risk of being injured or victimised like this man was and, what is more, members of the community should feel safe and comfortable about going to Service Stations if they need to for whatever reason no matter what time of the day it is, without inadvertently themselves becoming embroiled in situations like this. No doubt this is amongst the reasons for the maximum penalty being as high as it is. It is also the reason for the Court of Criminal Appeal setting guidelines in R v Henry (1999) 46 NSWLR 346 which provided a guideline or guidepost to sentencing judges when sentencing for offences such as this.

9. There needs to be general deterrence incorporated into the sentence to send a message that if people behave like this they can expect lengthy terms of full time imprisonment. The Henry guideline judgment states that an overall sentence of 4 to 5 years should be a starting point for offences where there are offenders committing these offences with certain characteristics. There are many similarities between this offender and those guidelines, but there are also some differences. One assists to decrease the range, namely he has pleaded guilty to this offence at the earliest available opportunity in the Local Court whereas the Henry guideline dealt with offenders who pleaded guilty late.

10. However, whilst he does come to Court as a relatively young person now, aged only 25, sadly he already has a significant criminal record, including for an offence of robbery in company committed in 2007 for which he spent 2 years and 3 months in gaol serving a non-parole period. I have the facts of that sentence. It is a different sort of robbery offence, having been committed in company on a person on a railway station and in fact to some extent it is perhaps even almost more serious because of the degree of actual violence that was used on the victim. However it is a matter of concern in terms of assessing his prospects of rehabilitation that that offence is on his record and it places him in a more serious position than some of the other offenders referred to by the Court of Criminal Appeal in the Henry guideline judgment.

11. I accept that the offender has no real memory of this offence and more probably than not was under the influence of methylamphetamine and perhaps other drugs or alcohol as well. His reason for committing this offence must be to obtain money, more probably than not to buy drugs, and also to get access to the cigarettes. The causation of his offending behaviour on this occasion I accept, and more probably than not almost everything else on his relatively lengthy criminal record, is because of an early descent into drug use. He has a number of entries on his record from the Children’s Court, including for aggravated break enter and steal, break enter building, assault occasioning actual bodily harm.

12. As I have said he is 25. He is of Maori background. He was born in New Zealand and came to Australia when he was 3. He was raised in a good family and raised well. His family are all here with him in Court today and they continue to support him, although no doubt being disappointed that he has behaved in this way again. His rehabilitation will be assisted by the fact that they will remain available to him, both whilst he stays in gaol and when he is released. He has a long term partner and an 8 year old daughter. His partner has also stuck by him, which should assist his rehabilitation, but regrettably he was not strong enough to take advantage of her support the last time he was released. It would appear that he was able to overcome his use of drugs whilst in gaol on the last occasion and for a period of time after he was released, particularly when he was being supervised he was able to stay out of trouble to an extent although it would appear still using drugs from time to time.

13. I accept that he worked as a removalist and so was being useful in the community, but unfortunately in mid-2014 he changed drugs from alcohol and cannabis and other drugs that he had experimented with, and started to use methylamphetamine. It is well known to the Courts that this drug has a very quick addictive impact on people. It makes them paranoid and aggressive. He was using that drug I accept daily up until his arrest for this offence and as I have said I accept, more probably than not, he was under the influence of that drug when he committed the offence to the extent that he has no real memory of it.

14. He has referred himself to residential drug centres whilst in custody and I accept that this indicates insight into the connection between his offending behaviour and his addiction to drugs. Whilst he will not be free to attend any residential rehabilitation outside gaol for some time, he was accepted by the Canton Beach Family Addictions Recovery Centre and his real prospects of rehabilitation will certainly be assisted by a longer than normal period in the community on his release to parole under supervision, undertaking drug rehabilitation programs, possibly residential, or perhaps not, depending on what his needs are at that stage and what might be available. He would also benefit from whatever might be available to him as a sentenced prisoner with ongoing alcohol and other drug treatment in the gaol system.

15. I accept that he at present is genuine in his desire to attend those programs, both in gaol and when he is released. He obviously did not succeed when he was released on the last occasion, at least not ultimately, but did for a period of time. It is to be hoped that on this next occasion he will display more strength of character and take advantage of the many assets he has in his family, his partner and his daughter and not descend to drug use again. I do accept that he has not been using substances whilst in custody.

16. I accept that he is genuinely remorseful for having committed this offence and as I have said this was demonstrated to an extent by the fact that he gave himself up when he became aware that the police had links between him and the offence. In the circumstances it seems to me, taking into account the objective seriousness of the offending, his prospects of rehabilitation, the general subjective case and bearing in mind the Henry guideline, an overall term of imprisonment of 4 years is called for.

17. There are special circumstances, most significantly being the need for a longer than normal period of supervision in the community to overcome his drug addictions and prevent relapse and for that reason I will be setting a 2 ½ year non-parole period, all backdated to the date he went into custody on 10 January.

18. For those reasons I make the following formal orders. He is convicted. He is sentenced to a non‑parole period of 2 years and 6 months, commencing 10 January 2015, expiring 9 July 2017 with parole thereafter of 18 months, commencing 10 July 2017, expiring 9 January 2019, giving rise to an overall term of imprisonment of 4 years, commencing 10 January 2015, expiring 9 January 2019.

19. I am not making any recommendations about parole. That is a matter for the Parole authorities to set the conditions when he is released. There are no s 166 or other charges.

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Decision last updated: 02 April 2019