R v Tuaoi - [2018] NSWDC 498

District Court

New South Wales

Medium Neutral Citation: R v Tuaoi [2018] NSWDC 498
Hearing dates: 6 August 2018, 26 September 2018
Date of orders: 05 December 2018
Decision date: 05 December 2018
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [77]

Catchwords: CRIMINAL LAW – sentence – robbery in company – Form 1 – joint criminal enterprise
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Barbaro v R; Zirilli v R (2014) 253 CLR 58
R v Kwon [2004] NSWCCA 456
R v McNaughton (2006) 66 NSWLR 566
R v Pham [2005] NSWCCA 94
The Queen v Pham (2015) 256 CLR 550
Veen v The Queen (No 2) (1988) 164 CLR 465
Category: Sentence
Parties: Regina (Crown)
Tanielu Tuaoi (Offender)
Representation:
Counsel:
Mr M Paish (Crown)
Mr R Rajalingam (Offender)
Solicitors:
ODPP (Crown)
Ly Lawyers (Offender)

File Number(s): 2016/326832
Publication restriction: None

Remarks on Sentence

Introduction

The Offender appears before the Court today for sentencing after pleading guilty to the charge on the Crown Sentence Summary (Exhibit A). The charge is robbery in company in contravention of s97(1) of the Crimes Act. The maximum applicable penalty is 20 years imprisonment and there is no standard non-parole period.
The charge is that on 17 October 2016 at Lalor Park and other places in the State of New South Wales, whilst in the company of Reshma Shariff, the Offender robbed Douglas Stanley of certain property, namely a mobile phone and cash, being the property of Douglas Stanley.
The legislative guideposts provide an indicator as to the seriousness of the offending. In exercising its discretion, the Court must always arrive at an outcome that is just in all the circumstances. As mentioned, the maximum penalty in respect of this offence is very high, that is 20 years, indicating that the community and Parliament regard the offending as serious. As mentioned, there is no standard non‑parole period.
The Offender has requested that, in sentencing on the principal charge, the Court take into account a further offence with which the Offender has been charged but not convicted. The Offender has admitted his guilt in relation to that additional charge. The charge on the Form 1 is taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal offence to which the Form 1 attaches. The Court does so by giving greater weight to elements which are always material in the sentencing process. The first is the need for personal deterrence; the second is the community entitlement to extract retribution for serious offences.
The charge on the Form 1, which is sequence 3, is a detain with intent to obtain a financial advantage in company, in breach of s86(2)(a) of the Crimes Act. The maximum penalty for that offence is also 20 years imprisonment. I note the copy of the Form 1 on the court file while signed by the parties appears not to have been signed by the Court and, accordingly, I…

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 Tuaoi

Details

AGLC: R v Tuaoi [2018] NSWDC 498
Case: [2018] NSWDC 498
Decision Date: 05 December 2018

CaseChat Overview and Summary

The Court of Appeal heard an appeal by the respondent against his conviction and sentence for robbery in company. The appellant, Tuaoi, was convicted of participating in a robbery in company, where the victim was robbed of a handbag containing cash and credit cards. The primary judge found that Tuaoi had participated in the joint criminal enterprise and sentenced him to a total of six years imprisonment. The appeal focused on the sufficiency of the evidence to support the primary judge's finding of Tuaoi's participation and the severity of the sentence imposed. The court was required to determine whether the evidence was sufficient to support the primary judge's conclusion that Tuaoi was part of the joint criminal enterprise and whether the sentence was appropriate.

The Court of Appeal found that the evidence was sufficient to support the primary judge's conclusion that Tuaoi was part of the joint criminal enterprise. The court held that the evidence demonstrated that Tuaoi was present at the scene of the robbery, knew that a robbery was to occur, and took steps to facilitate the commission of the robbery. The court rejected the appellant's argument that he was merely a lookout and did not actively participate in the robbery. The court also found that the sentence imposed by the primary judge was appropriate, taking into account the seriousness of the offence and the appellant's criminal history.

In conclusion, the Court of Appeal dismissed the appeal and upheld the conviction and sentence imposed by the primary judge. The court found that the evidence was sufficient to support the primary judge's conclusion that Tuaoi was part of the joint criminal enterprise and that the sentence imposed was appropriate. The appeal was dismissed, and the conviction and sentence remained in place.

Orders

Orders of the court

At [77]

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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Medium Neutral Citation:	R v Tuaoi [2018] NSWDC 498
Hearing dates:	6 August 2018, 26 September 2018
Date of orders:	05 December 2018
Decision date:	05 December 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [77]
Catchwords:	CRIMINAL LAW – sentence – robbery in company – Form 1 – joint criminal enterprise
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Barbaro v R; Zirilli v R (2014) 253 CLR 58 R v Kwon [2004] NSWCCA 456 R v McNaughton (2006) 66 NSWLR 566 R v Pham [2005] NSWCCA 94 The Queen v Pham (2015) 256 CLR 550 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Tanielu Tuaoi (Offender)
Representation:	Counsel: Mr M Paish (Crown) Mr R Rajalingam (Offender) Solicitors: ODPP (Crown) Ly Lawyers (Offender)
File Number(s):	2016/326832
Publication restriction:	None