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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 shall sign the certification in the Form 1 and date it today, confirming that I have taken into account the charge on the Form 1 in respect of which the Offender has admitted guilt.

6. The offending was committed on 17 October 2016 and the Offender was arrested on 23 January 2017, being the date upon which he was also charged. He was then held in custody for a period of five days until 27 January 2017. According to the Crown Sentence Summary Cover Sheet, the matter was committed for trial on 15 December 2017 from the Penrith Local Court.

7. The matter was fixed for trial on 12 June 2018 at the Parramatta District Court. The Offender pleaded guilty to the charges on 13 June 2018, being the day after the date set for the commencement of the trial in the matter. This was at a relatively late stage of these proceedings, which will of course be taken into account in assessing the utilitarian value of the guilty plea.

8. As noted, the Offender was in custody from 23 January 2017 to 27 January 2017 before being released on bail.

9. At the sentence hearing the Crown relied upon the following:

1. Crown Bundle and the documents attached thereto (Exhibit A); and

2. Pre‑Sentence Report (exhibit B).

10. The Offender relied upon the following material:

1. report by Laura Durkin, psychologist, dated 31 July 2018 (Exhibit 1);

2. character reference by Jamilee Aerenga dated 24 June 2018 (Exhibit 2); and

3. Discharge Summary (Exhibit 3).

11. Today the Offender has tendered a Death Certificate in respect of his father, who passed away a few months ago. The Offender also relied upon Submissions on Sentence (MFI 1).

12. I should note that since the matter was heard the Crown has sent through a short submission dealing with the question of objective seriousness, which I will mark for identification, MFI 2.

The Agreed Facts

13. The statement of agreed facts provides as follows:

14. The victim Douglas Stanley, first met the co-Offender, Reshma SHARIFF, in the evening of 29 September 2016 at the Lalor Park Hotel. Ms Shariff and the victim struck up a conversation and exchanged phone numbers agreeing to meet later that night. They did meet and socialized that evening and for the following 24 hours exchanged a number of text messages.

15. Between 1 October 2016 and 3 October 2016, the victim and Ms Shariff met on 4 separate occasions. On each of those occasions Ms Shariff informed the victim of personal financial dilemmas she was experiencing and borrowed money from him to a total of $900. The last cash loan the victim gave Ms Shariff was on the evening of 3 October 2016.

16. After their final meeting on 3 October 2016, the victim did not hear from Ms Shariff until about 1pm, 17 October 2016, when she rang him and told him she has his money and requested to meet with him. They agreed to meet at the Lalor Park Shops and Ms Shariff told him she was leaving work and it would take her one hour to get there.

17. At about 2pm the victim was being driven to the Lalor Park Shops by a friend to meet with Ms Shariff when she called him and changed the meeting place to the Lalor Park Hotel.

18. At about 2.30pm the victim arrived at the Hotel and saw Ms Shariff’s car parked in nearby laneway and saw Ms Shariff walking towards him. Ms Shariff told the victim he would need to go with her to get the money but they agree to stay at the Hotel for a short time so that Ms Shariff could put some coins in the poker machines.

19. After a short time Ms Shariff walked with the victim back to her car. As the victim was about to get into the front passenger seat, Ms Shariff told him that the front seat was broken and asked him to sit in the back.

20. As the victim got into the rear passenger seat of the car and closed the door the Offender opened the same door and forced his way into the back seat next to the victim pushing him across the rear seat. The victim tried to exit the vehicle via the rear passenger door but could not unlock it. The victim did not want to remain in the car. At this time Ms Shariffmade out that she did not know who the Offender was. The Offender then said to the victim, “You’re Doug” and “Your mate Ray Moodie owes me $1000 and he told me to get it off you.” The victim told the Offender he didn’t have any money and didn’t know anything about this allegation.

21. The Offender then told the victim he had a knife and would stab him, and told him he had been looking for him for 2 weeks before demanding his mobile phone and wallet. The victim did not see a knife but was fearful that the Offender could have one secreted in his pocket. The victim handed the Offender his phone and his wallet which the Offender went through removing $165 cash and the victim’s Westpac keycard and demanding the PIN. The victim provided the PIN.

22. Ms Shariff then drove the car with the Offender and the victim in the back seat to the Seven Hills Centro Shopping Centre where she took the victim’s keycard and withdrew $740 from his savings account. Ms Shariff returned to the car and drove back to the Lalor Park Hotel. The victim then got out of the car and Ms Shariff and the Offender left the scene.

23. The victim contacted police who arrived shortly afterwards and seized CCTV footage from the hotel which show Ms Shariff and the Offender talking together several minutes prior to the victim first arriving. Police also retrieved CCTV footage from the Seven Hills Centro Shopping Centre which depicts Ms Shariff withdrawing the money from the St George ATM.

24. Ms Shariff was arrested at her home on 24 October 2016. She participated in an electronically recorded interview where she admitted to borrowing $900 from the victim and meeting up with him on 17 October 2016. She claimed however that she was in the driver’s seat whilst the victim was robbed by a male she did not know. The Crown case was that both offenders had prearranged the robbery.

25. After she was shown the footage of herself speaking with the Offender prior to the robbery Ms Shariff admitted she had spoken with him and eventually revealed that she had his mobile number (0405 676 245) stored in her mobile under the name Tanz.

26. Police were then able to use this information to identify the Offender and eventually arrest him on 23 January 2017. During an electronically recorded interview with police on that day, the Offender admitted sitting in the back seat with the victim while Ms Shariff drove to the ATM and withdrew money from the victim’s account, but denied being a party to any robbery. He agreed that he was aware that Ms Shariff wanted to obtain money from the victim. He further stated that Ms Shariff had asked him to be present in the car as “intimidation”.

27. The Crown agrees that the Offender did not produce a knife during the time that he was with the victim in Ms Shariff’s car.

28. The victim was of small stature and had a badly injured right forearm and hand. The Offender was of a large build and at least twice the weight of the victim.

Objective Seriousness

29. A predominant factor relevant to the sentence is the objective seriousness of the offending. It is not, however, necessary to articulate a determination by placing the offending along a hypothetical range, although this is commonly done. It remains an essential task to undertake an evaluative assessment of the objective seriousness of the offence. The starting point is the legislative guidepost, to which I have already referred. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

30. Counsel for the Offender made the following submissions regarding overall criminality:

1. the Offender was not young;

2. although the victim was threatened with the use of the knife, such a weapon was not produced;

3. there was a minimal degree of planning;

4. there was no actual violence by the Offender, only a threat;

5. the victim was not in a position of vulnerability; and

6. the amount taken, a mobile phone and $740 in cash, was relatively small but was of importance and value to the victim.

31. In the further submissions referred to previously (MFI 2) the Crown in short form helpfully provided the Court with assistance as to its submission in relation to the objective seriousness of the offending.

32. It was suggested that the victim was vulnerable, that is he was a small man with a damaged hand; secondly, that the Offender was, in contrast, a large, powerful man and much stronger; thirdly, that the victim was tricked into getting in the vehicle of the co-accused; fourthly, that there was some prior planning, although not extensive; fifthly, there was the threat of serious injury. Although there was no assault, the victim was in real fear and also trapped in the vehicle by reason of the presence of the Offender and the locked door.

33. In relation to the Form 1 matter, the Crown reminds the Court that I must take into account the charge of detention, for which the Offender has admitted guilt.

34. It is further submitted by the Crown that the objective gravity is above the mid-line of the spectrum and, further, that the Court would reject the Offender’s position that he was initially trying to just help the co-Offender recover money; secondly, that the Court would reject the Offender’s assertion that he did not threaten the victim with a knife; and thirdly, that both of those matters aforementioned severely diminish the Offender’s remorse. The Crown on the last occasion contended that the Offender had not shown remorse or has only done so partially. The Crown submitted that the Offender knew that he was going to be an integral part of the robbery of the victim.

35. The Court must also have regard to any aggravating or mitigating circumstances particular to the offending and the Offender, the former to be proven beyond reasonable doubt and the latter on the balance of probabilities. The aggravating factors which are relevant and exist here include:

1. the offence involved the threatened use of violence;

2. the Offender has a record of previous convictions, although limited;

3. the victim was in a position of vulnerability in that he was trapped in the vehicle and also substantially disadvantaged by his physical impairment and size; and

4. that the offence was part of a planned criminal activity, although to a limited degree; and

5. the offence was undoubtedly committed for financial gain.

36. The only mitigating factor that exists here relevant to the exercise of sentencing discretion is the guilty plea entered by the Offender. Whilst that, of course, demonstrates some degree of remorse, I agree with the Crown’s submissions that the Offender’s remorse for this offending is qualified and not reflective of the whole of the offending behaviour. I will expand upon that below in dealing with the subjective case.

37. Returning to the question of objective gravity, taking into account the nature and the elements of the offence, as well as the particular facts of the case, I find the offending falls at around the mid-range of objective seriousness.

Subjective Case

38. The Offender is now 42 years of age. The following facts are derived largely from a report by the psychologist, Ms Durkin. The Offender was born in Samoa but raised in South Auckland, New Zealand as one of five children. The Offender described a close bond with his mother but recollected that his father was disconnected from family life. The Offender’s brother, however, became a role model for the Offender. This sibling emigrated to Australia and the Offender reported struggling with the absence of his brother. The Offender generally reported a positive upbringing.

39. The Offender reported that in his early adolescence he became engaged in conduct including truanting and associating with delinquent peers. The Offender was suspended several times during his high school years. After leaving high school the Offender began a traineeship in carpentry but resigned after being frequently absent. The Offender struggled to secure and maintain work, citing negative social influence as the primary obstacle in his way. As a result the Offender has, on average, only been employed for periods of up to six months. The Offender is presently employed part-time as a tiler’s labourer and had been offered full-time employment upon these proceedings being concluded.

40. The Offender met his first significant partner when he was 17 years of age and he recalled that relationship fondly. His drug and antisocial associates, however, interfered with that relationship. Eventually the relationship ended due to the lack of trust that the Offender’s ex-partner had with him. The Offender has three adult children from that relationship, all of whom reside in New Zealand. The Offender engaged with these children regularly prior to his offending, usually by way of social media, but this contact has now ceased. The Offender is now in a new relationship and his partner has provided a reference to the Court, to which I will refer.

41. The Offender first tried alcohol when he was 16 years of age, consuming on average six standard drinks on about two occasions per week. This use was maintained until the Offender ceased drinking two years ago. Between the ages of 16 and 20 the Offender used 2 grams of cannabis per day. Subsequently the Offender started using crystal methylamphetamine, smoking up to 2 grams per day at the peak of his use. The Offender reported that he was using methylamphetamine consistently in the three years prior to this offence. The Offender reported that he ceased the abuse of illicit substances in June 2018.

42. The psychologist questioned the Offender as to whether he had a history of any psychological difficulties. He denied previously experiencing any problems with depression, mania, psychosis, trauma or anxiety and did not report anger management issues. He, however, reported that since engaging in this offending, the subject of the sentence, he has experienced depression and that he is struggling with worthlessness, tearfulness, a lack of pleasure, low mood, reduced appetite and has lost weight and is socially isolating himself. He has never engaged in any psychological treatment nor is he seeking any intervention for the symptoms, to which I have just referred.

43. The report by the psychologist provides some information as to the Offender’s insight into his offending. Whilst he did not contest the agreed facts previously referred to, he presented a position in fact in the Pre-Sentence report that he was allowed to have been manipulated by his co-Offender. The Offender did display contrition for his involvement in the offences. I note that in the report by Ms Durkin it is stated:

“He believed that he was acting appropriately and in the best interests of his co-accused but he failed to question his associate, consider her claims and also assess the situation he was engaging in and the appropriateness of his role in that situation.”

44. In the Pre-Sentence Report the question of insight was explored in more detail, where it is stated under the heading “Attitude to Offending”:

“Whilst the Offender did not contest the agreed facts, it was his position that he allowed himself to be manipulated by the co‑Offender, referencing that he was misled. Furthermore, he claimed that he was substance-impaired and his ability to rationalise his behaviour was significantly impaired at the time of the offence.”

45. Later in the same section of the report it is stated:

“Despite verbally expressing his regret, he appeared to divorce himself from responsibility, apportioning accountability of the offence towards his co-Offender.”

46. The psychological material, including the Pre-Sentence Report, otherwise describes a relatively stable family environment where the plaintiff maintains residence with his current partner and family.

47. I have also had regard to the character reference provided by Ms Aerenga dated 24 June 2018, in which she describes her association with the Offender. At the time of writing the reference they had been in a de facto relationship, living together for two years. She speaks favourably of the accused and confirmed that he had not fallen back into “past ways” and that he had removed all of the unhealthy members of the community he once called mates. She further referred to the subject offending as being “extremely out of character”. Of course all unsworn and untested statements of this type must be treated with some circumspection.

Previous Convictions

48. Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that the aggravating factors to take into account in determining the appropriate sentence include that the Offender has a record of previous convictions. According to the documents provided by the Crown, there are no convictions in New South Wales. There are convictions, however, in New Zealand commencing in about 1993 through to about 2011.

49. Whilst they include offences relating to assaults, offensive weapons and less serious driving offences, it is my view that the previous convictions do not in fact aggravate the offending on this occasion. In my opinion, to give weight to the prior offending in this particular case would offend the principle of proportionality and totality, resulting in a sentence which did not necessarily reflect the objective seriousness of the offence.

Remorse

50. Evidence of contrition or remorse in respect of the subject offending is also a relevant consideration. Evidence of that nature must be assessed in context. Remorse is but one feature of post-offence conduct upon which an Offender may seek to rely as a matter which has the potential to mitigate penalty. Ordinary human experience would suggest that it is only human nature that a person who has committed some misdeed would wish to make the most favourable impression in seeking to make amends for it.

51. Here the evidence of remorse includes the plea of guilty. However, it was in the face of a strong Crown case. The remorse referred to by the psychologist in considering his insight into the offending would suggest that the genuineness of the remorse demonstrated by the Offender is limited.

Addiction

52. The Offender has a history of addiction to illicit substances and that must be given some weight in the sentencing exercise. According to the author of the Pre-Sentence Report, the Offender has appeared to have recognised the correlation between the substance abuse and his offending behaviour. The Offender noted that he ceased using illicit substances in June 2018, which, whilst prior to the sentence, was almost two years after the subject offending.

Deportation

53. The Court must also be mindful of any particular hardships of the Offender which may be caused by the sentence to be imposed. Submissions were made on the last occasion on behalf of the Offender as to the risk of deportation and that that was a hardship with which the Court should have regard.

54. The authorities appear on this question to be mixed. I note the decision of the New South Wales Court of Criminal Appeal in the matter of R v Pham [2005] NSWCCA 94 at [13] where it was stated that deportation is “irrelevant as a sentencing consideration being a matter exclusively for the executive government”.

55. Counsel for the Offender referred the Court to the decision of the Court of Criminal Appeal in a matter of R v Kwon [2004] NSWCCA 456 where Hulme J stated:

“These two matters are not insubstantial and one may fairly say in practical terms punishing consequences of his offending of regard and opportunity for someone in the situation of the respondent of permanently settling in Australia with his family as something of real value to him. I should perhaps add that while I have mentioned what has happened to the respondent’s family I do not regard the hardship they suffer from not being allowed to settle here as falling in the highly exceptional circumstances where hardship to an Offender’s family can properly be taken into account in mitigation of the sentence. Whilst I have had regard to the risk of deportation as giving rise to a particular hardship to this Offender in my view it does not outweigh the other purposes for sentencing to which the Court must have regard.”

Rehabilitation

56. Having given careful consideration to the evidence which informs this matter, I find the prospects of successful rehabilitation are guarded. That evidence includes the opinion of the psychologist Ms Durkin who recommended that for successful rehabilitation to occur the Offender would have to continue with his drug and alcohol counselling.

Re-Offending

57. I have also turned my mind to the question of reoffending and, consistent with my finding regarding rehabilitation, I find the likelihood of reoffending is low to moderate. I have had regard in this respect to the opinion of the author of the Pre-Sentence Report who noted that the identified criminogenic needs are anti-social companions, alcohol and drug abuse. The risk of reoffending of course increases for specific deterrence.

Approach to Sentencing

General Principles

58. Under s3A of the Crimes (Sentencing Procedure) Act 1999 a Court is to have regard to the purposes for which it may impose a sentence on an Offender.

59. The first is punishment. There is no doubt that the offending that has taken place on this occasion is serious and requires adequate punishment.

60. The second is deterrence, both specific and general. The conduct in which the Offender engaged is contrary to what one would expect in the community and ought to be the subject of firm general deterrence. Given the risk of re-offending as identified by the author of the Pre-Sentence Report there is also a real need for specific deterrence.

61. The third consideration under s3A is protection of the community. The gentleman who was the victim in this case was not known to the Offender; nevertheless the Offender placed the victim in a position where he was vulnerable, exposed and at risk. The Court must, in identifying the sentence outcome, have regard to the need to protect the community from such behaviour.

62. The next consideration is rehabilitation, to promote the rehabilitation of the Offender. For the reasons given I consider the prospects of successful rehabilitation to be guarded although I am hopeful, in light of the recent abstinence from drugs, that rehabilitation will be successful.

63. The next relevant purpose is accountability; that is to make the Offender accountable for his actions. Whilst he has demonstrated some remorse the insight into his offending suggests that he attributes blame for the offending to others, in particular his co-Offender.

64. The next relevant consideration is denunciation and the Court must denounce the conduct of this Offender, it is anti-social and places innocent members of the community at risk of violent encounters.

65. Finally recognition, that is to recognise the harm done to the victim of the crime and to the community. Whilst the harm done to the victim in monetary terms may be modest there is no doubt, as was accepted by counsel for the Offender, that the victim was vulnerable and would have been, in the circumstances which existed, fearful.

66. The emphasis to be placed upon the various purposes for sentencing will vary according to the circumstances of each case including the objective and subjective considerations.

Proportionality

67. In arriving at the sentence I have also observed the principles of proportionality explained in Veen v The Queen (No 2) (1988) 164 CLR 465 and alluded to in s3A of the Sentencing Act and to ensure that the Offender is adequately punished.

68. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime, having regard to the objective circumstances. In sentencing there must be reasonable proportionality between the sentence and the circumstances the crime. The relevant importance of the objective facts and the subjective features of course vary in each case and due weight must be given to the objective circumstances as the Court engages in the process often referred to as instinctive synthesis.

Imprisonment

69. I must be satisfied having considered all possible alternatives that no sentence, including a non-custodial sentence other than imprisonment is appropriate. In this case, the Crown contended that the threshold under s5 had been met and that a term of imprisonment was warranted.

70. Counsel for the Offender submitted that other forms of punishment were appropriate, noting that the author of the Pre-Sentence Report for example, stated that the Offender would be suitable to be sentenced to a community service order. In my opinion, that form of punishment would, given the objective seriousness of the offending, be inadequate. I find that after considering all alternatives, imprisonment by way of full time custody is appropriate.

Guilty Plea

71. In accordance with s 22 of the Act, the Court must also in passing sentence, take into account the fact that the Offender has pleaded guilty and the circumstances in which the plea was made. I previously referred to those circumstances.

72. Counsel for the Offender submitted that a discount on sentence of 10% would be appropriate. The Crown did not wish to be heard against that submission. In the circumstances, I consider that a discount in sentence of 10% would be just and reasonable. I find that such a discount would not result in a lesser penalty, which is unreasonably disproportionate to the nature and the circumstances of the offending.

Special Circumstances

73. It is agreed between the parties that special circumstances exist here so as to justify a departure from the statutory ratio for parole, on the basis of this being the Offender’s first time in custody and his need for rehabilitation which, in my view, is best facilitated in the community whilst on parole. It is also provides a longer period of supervision of the Offender whilst on parole in the community.

Consistency

74. I have had regard to the question of consistency and the statistics in particular. I note that they are of course a blunt instrument and not to be determinative of any sentence. In this case the statistics for offences of this nature and with the Offender’s profile, with a guilty plea in Form 1 matters, comprises a population of 751 cases, with 681, 90% of those matters resulted in full time custody. In all of the periods in custody, the range was 30 months, which is two and a half years, to six years.

75. In considering those statistics, I have taken into account the comments of the High Court in the matter of Barbaro v R; Zirilli v R (2014) 253 CLR 58. I have also had regard to the caution provided by Bell J and Gageler J in The Queen v Pham (2015) 256 CLR 550 at [49]. Taking all of those matters into consideration, I am satisfied that the sentence to be imposed in this case, is consistent with sentences imposed in like matters.

Sentence

Commencement Date

76. Taking into account the time spent in prison to date, the sentence will commence on 30 November, 2018.

Sentence

77. Sir you are convicted of the offence set out on the Crown Sentence Summary of robbery in company, which is charge H334 sequence 1, in breach of s97(1) of the Crimes Act. In respect of that conviction and having regards to the charge on the Form 1 which you have asked me to take into account, being sequence 3, I impose a sentence of three years, which after a discount of ten per cent, results in a sentence of two years and eight months.

78. I impose a sentence consisting of a non-parole period of one year and eight months, that is reducing the statutory ratio so you will have more time in the community than usual, commencing 30 November 2018 and expiring 29 July 2020, at which time you will be released on parole. I impose a head sentence of two years and eight months.

79. I direct that a copy of the report of Ms Durkin accompany the Offender’s warrant of commitment.

Note – These ex-tempore remarks were revised without access to the court file

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Decision last updated: 30 April 2019