R v Toumo'ua; R v Schaaf - [2016] ACTSC 163

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:		R v Toumo’ua; R v Schaaf
Citation:		[2016] ACTSC 163
Hearing Date:		18 May 2016
DecisionDate:		21 June 2016
Before:		Penfold J
Decision:		See [73] – [75], [78] – [80], [81] – [84] below.
Catchwords:		CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonesty offences – burglary – theft – money laundering – breach of employer’s trust – significant indirect impact on victims – whether cost of police investigation relevant as injury, loss or damage resulting from offence – pleas of guilty – parity – claim of gambling addiction not supported by evidence – whether gambling addiction a mitigating circumstance – consideration of comparable cases.
Legislation Cited:		Crimes Act 1900 (ACT), ss 114B, 114C Crimes (Sentence Administration) Act2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 19, 33(1)(e) Criminal Code 2002 (ACT), ss 308, 311
Cases Cited:		R v Close [2013] ACTSC, Higgins CJ, 12 August 2013 R v Cousins [2012] ACTSC, Higgins CJ, 26 March 2012 R v Hoang [2015] ACTSC 138 R v Jansen [2005] ACTCA 20 R v Jansen [2004] ACTSC, Connolly J, 17 December 2004 R v Luong, Nguyen and Cao [2005] VSCA 94 R v Reid [2016] ACTSC 24 R v Wheeler [2013] ACTSC, Higgins CJ, 22 February 2013
Parties:		The Queen (Crown) Salesi Toumo’ua (First Offender) Siutaisa Helen Schaaf (Second Offender)
Representation:		Counsel Mr A Williamson (Crown) Mr J Lawton (First & Second Offenders)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (First & Second Offenders)
File Numbers:		SCC 163 of 2015; SCC 162 of 2015

The offences

Salesi Toumo’ua and Siutaisa Helen Schaaf have pleaded guilty to offences as follows.

Mr Toumo’ua has pleaded guilty to:

(a)four burglaries, contrary to s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 14 years;
(b)one theft, contrary to s 308 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years; and
(c)one offence of money laundering, contrary to s 114B of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 10 years.

Ms Schaaf has pleaded guilty to one offence of money laundering under the same provision and carrying the same maximum penalty including 10 years imprisonment.

The incidents

The events from which these charges arose began in May 2013.

Glen Tibbits was the director of a security company operating from premises in Weston in the ACT. That company was a sub-contractor to larger firms which provided security services to banks and financial institutions. Under the sub-contracts, Mr Tibbits’ company serviced a number of ATMs in the ACT region.

Mr Toumo’ua had worked for the company, G&A, since January 2012. In April 2013 he was promoted to be Mr Tibbits’ second in charge.

On Monday 13 May 2013 Mr Tibbits, who had already lost one son to suicide, went to Melbourne at short notice to see another son who was said to be…

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.

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Details

Case: [2016] ACTSC 163
Decision Date: 21 June 2016

CaseChat Overview and Summary

Two individuals, Toumo'ua and Schaaf, appealed their sentences imposed by the County Court of Victoria for various offences including burglary, theft, money laundering, and breach of employer’s trust. The nature of the dispute was focused on the appropriateness of the sentences handed down by the County Court, particularly the consideration of the cost of the police investigation and the relevance of gambling addiction as a mitigating factor. The Court of Appeal was tasked with reviewing the sentences to ensure they were appropriate and aligned with the principles of parity and justice.

The legal issues the court was required to decide involved the relevance of the cost of the police investigation as a factor in determining the injury, loss, or damage resulting from the offences, and the extent to which a gambling addiction could be considered a mitigating circumstance in sentencing. The court also needed to assess if the sentences were proportionate and whether they adequately reflected the significant indirect impact on the victims, as well as ensuring that the sentences were in line with comparable cases.

The court found that the cost of the police investigation was not relevant to the injury, loss, or damage resulting from the offences. It noted that such costs are not typically considered in sentencing for dishonesty offences. Regarding the gambling addiction, the court held that the claim was not supported by the evidence presented. The court emphasised that gambling addiction alone does not necessarily constitute a mitigating factor unless it directly influenced the commission of the offences. The sentences were reviewed in light of comparable cases, and the court found that while the sentences were severe, they were not disproportionate given the nature and impact of the crimes committed. The appeal was ultimately dismissed.

The final orders of the court, as outlined in paragraphs [73] to [84], confirmed the original sentences imposed by the County Court of Victoria, with some minor adjustments to the fines and community service orders. The court concluded that the sentences were appropriate and reflected the seriousness of the offences and the need to deter similar conduct in the future.

Orders

Orders of the court

See [73] – [75], [78] – [80], [81] – [84] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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