R v Taufahema

[2018] NSWDC 445

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Taufahema [2018] NSWDC 445
Hearing dates:	11 December 2018
Date of orders:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Fixed term of imprisonment of 6 months: at [14].
Catchwords:	SENTENCING – conceal a serious indictable offence – guilty plea – low range of objective seriousness – guarded prospects of rehabilitation – on conditional liberty at time of the offence
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Podesta v R [2009] NSWCCA 97 R v Thomas [2007] NSWCCA 269
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown)   Honora Taufahema (Offender)
Representation:	Ms Brown (DPP)   Mr Berents (Counsel for the offender)
File Number(s):	2017/362839

Judgment

1. In Podesta v R [2009] NSWCCA 97, McClelland CJ at CL was dealing with offences under ss 316 and 319 of the Crimes Act 1900 (NSW) and his Honour’s remarks about s 319 are equally applicable to s 316, namely any such offence has a tendency to seriously impact upon the order of our society and unless members of the community cooperate with the authorities in the investigation of crime, particularly major criminal offences, the rule of law may be undermined. That case was aptly cited to me by Mr Berents of Counsel for the offender, who appears today, having pleaded guilty to one count under s 316 of the Crimes Act of concealing a serious indictable offence, which carries a maximum penalty of two years imprisonment and no standard non-parole period.

2. It is put without contest on the basis of an untested psychologist’s report that her motivation was to maintain a sense of loyalty to her family, and that she did not believe that the offending involved was sufficiently serious to warrant her breaching her loyalty to her family. That misguided loyalty sees her facing a serious criminal charge arising out of a robbery which was committed at the Auburn Girls High School on 26 October 2017.

3. The basis of her plea is that she was in a car with her sister and with her co-offender, Johnson, when a gentleman named Piukala returned to Johnson’s vehicle wearing a balaclava and carrying a hunting knife. This offender was aware that Piukala had committed a robbery at the school when he returned to the car and she was aware that she had information that would assist to apprehend and prosecute Piukala for the offence but she failed to notify the police.

4. The short facts show a very amateurish but serious robbery in which the offenders left significant evidence which enabled strong cases to be established against them quickly. Piukala went into the school administration office, wearing a balaclava and holding a 15 centimetre hunting knife in his hand, pushed the knife close to the female administrator’s stomach and said “Give me all the money.” She ultimately gave him $5,180 in cash, which had come from various envelopes. He ran off carrying the knife. CCTV footage, as it does these days, was able to demonstrate the course of the vehicle and the offenders.

5. I take into account the contents of the victim impact statement. It has not been tested or subject to cross-examination and, as the authorities, including for example, Basten JA in R vThomas [2007] NSWCCA 269, suggest, those cautions should be borne in mind, but where the effects of the offending are set out in the statement and limited to the consequences of the offending it is legitimate to take them into account. The significant lasting trauma suffered by this 55-year-old single woman, who was the victim of the robbery, is a matter to be taken into account to a limited degree. But of course, as Mr Berents correctly points out, there is no evidence that this offender knew of the extent of the violence that was occasioned by Piukala while he was inside the school building and no evidence that she obtained any benefit from the robbery.

6. Her plea of guilty at an early opportunity entitles her to a 25% discount on any term of imprisonment for the utilitarian value of the plea.

7. Her subjective circumstances are set out in an untested psychologist’s report. She comes from a large family of Tongan descent. Her parents came to Australia from Tonga to give her a better life. She has seven children with her new partner, aged between three and 16 years, and all of them, except the eldest, are currently cared for by her parents.

8. She was born in 1981 has been in custody for lengthy periods over her life, with a lengthy history of teenage and adult drug abuse. The psychologist accurately summarises her criminal history as being extensive. She first came to the notice of police when she was 15 years old charged with larceny and she has consistently offended over a range of offences, including theft, detention for advantage, drug offences, driving crimes, violence, fraud-related offences and weapons offences and while she has spent considerable periods in custody, the psychologist helpfully notes that her account was not indicative of institutionalisation.

9. There is no suggestion that she has ever suffered from any mental health condition, it being only suggested that her drug use and crime underpinned by her limited capacity for emotional management affects her offending generally. Her prospects of rehabilitation are understandably guarded according to the psychologist and I accept that guarded prognosis.

10. There is little in contest between the Crown and Mr Berents who says that although a very serious offence, it is in the lower range of objective seriousness and no real question of parity arises at the moment. First, the offender’s sister was convicted and sentenced to nine months’ imprisonment with a non-parole period of six months, but an appeal against that sentence has been listed for hearing before me in February, and two other co‑offenders Johnson and Piukala will be dealt with in February next year as well.

11. Having been arrested on 30 November, she has served time in custody being the balance of parole from an earlier sentence until 12 February 2018 and then has also been bail refused I am told in relation to other matters since that time.

12. As the Crown highlights, the victim impact statement speaks eloquently of the significant distress and harm that the victim has suffered, having gone from a hardworking single parent to being scared to leave the house and being unable to work. The aggravating factor conceded is that she was on conditional liberty.

13. As to the mitigating factors, the plea of guilty has been referred and the guarded prospects of rehabilitation are taken into account. It has to be said that Mr Berents only faintly put the proposition that the s 5 threshold has not been crossed and he more realistically urged for what he described as a short, sharp sentence in the matter. That is the appropriate way to deal with the offending in my view.

14. The orders I make are:

1. The offender is convicted of the offence.

2. I impose a fixed sentence of 6 months imprisonment, commencing on 12 February 2018 and expiring on 11 August 2018.

Note – These extempore sentencing remarks were revised without access to the court file.

**********

Amendments

15 March 2019 - Anonymised unique personal identifier on cover sheet and at [8].

Decision last updated: 15 March 2019