R v Taufahema - [2004] NSWSC 833

New South Wales

Supreme Court

CITATION: Regina v Taufahema [2004] NSWSC 833

HEARING DATE(S): 23 April 2004
26 August 2004

JUDGMENT DATE:
10 September 2004

JUDGMENT OF: Sully J at 1

DECISION: Effective head sentence of 23 years with non-parole period of 16 years

LEGISLATION CITED: Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: Lowe v The Queen 1984 154 CLR 606

PARTIES :
Regina
Motekiai Taufahema

FILE NUMBER(S): SC 70235/02

COUNSEL: P. Barrett - Crown
C. McNamara - Prisoner

SOLICITORS: S. Kavanagh - Crown
Van Houten Solicitors - Prisoner

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL DIVISION

SULLY J

10 September 2004

70235/02 – REGINA v MOTEKIAI TAUFAHEMA
ON SENTENCE

1 SULLY J: On 10 March 2004 the prisoner, Motekiai Taufahema, was presented for trial in this Court upon an indictment containing three counts. The first count charged the prisoner with having murdered one Glen McEnallay. The second count charged, in the alternative to the first count, that the prisoner, whilst in the company of three other named men, had shot at Glen McEnallay with intent to avoid the lawful apprehension of the prisoner himself and of the other three men. The third count charged the prisoner with the unlawful possession of a firearm, namely a Smith and Wesson .357 revolver.

2 Prior to the commencement of the addresses of counsel there was discussion concerning the retaining, as part of the indictment, of Count 2. Following that discussion, the Crown Prosecutor elected not to proceed upon Count 2; so that only Counts 1 and 3 in the indictment as originally presented went to the jury.

3 The prisoner, when arraigned, pleaded not guilty to each count in the indictment. On 1 April 2004 the jury found him guilty as charged upon Counts 1 and 3 in the indictment. He was, thereupon, formally convicted; his antecedents were tendered; and the proceedings on sentence were adjourned part-heard until 23 April. On that day further evidence was received on the matter of sentence, and the sentence proceedings were adjourned part-heard to a date to be fixed in the week of 23 August last. That further adjournment was granted upon the application of the prisoner, and for the purpose of the obtaining of an appropriate psychiatric report about the prisoner. In the event, funding was not available for the obtaining of such a psychiatric report; and the part-heard sentence proceedings were concluded, accordingly, on 26 August last.

4 The offence charged in Count 1 of the indictment contravenes section 18 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for the term of the offender’s natural life. The offence of unlawful possession of a firearm as charged in Count 3 of the indictment contravenes section 7(1) of the Firearms Act 1996 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.

5 The relevant facts are as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Taufahema

Details

AGLC: Regina v Taufahema [2004] NSWSC 833
Case: [2004] NSWSC 833
Decision Date: 10 September 2004

CaseChat Overview and Summary

Motekiai Taufahema was convicted of the murder of Glen McEnallay and the unlawful possession of a firearm. The court considered the appropriate sentence, focusing on the principle of parity with his co-offenders. The defendant had a history of violence and substance abuse, but also showed potential for rehabilitation. The court examined the individual circumstances of each co-offender and applied the principle of parity to ensure a fair sentence. The defendant was sentenced to imprisonment for 21 years for the murder, with a non-parole period of 14 years, and a fixed term of 5 years for the firearm offence, partially accumulated with the murder sentence. The overall effective sentence was a head sentence of 23 years with a non-parole period of 16 years.

Orders