R v Tuifua (No 2)
[2020] ACTSC 173
•17 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tuifua (No 2) |
Citation: | [2020] ACTSC 173 |
Hearing Date: | 16 June 2020 |
DecisionDate: | 17 June 2020 |
Before: | Burns J |
Decision: | See [24]–[35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence – theft – driving motor vehicle without consent – pleas of guilty – breach of good behaviour orders – guarded prospects for rehabilitation – consideration of drug and alcohol abuse |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 318 |
Parties: | The Queen (Crown) Sione Feiloakitau Tuifua (Offender) |
Representation: | Counsel R Christensen (Crown) J Robertson (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Number: | SCC 288 of 2019 |
BURNS J:
Sione Tuifua, you appear before me today to be sentenced with regard to one charge of theft contrary to s 308 of the Criminal Code 2002 (ACT) (the Criminal Code)
(SCCAN 2020/16) and one charge of driving a motor vehicle without consent contrary to s 318 of the Criminal Code (CC 2019/8593). The maximum penalty for the offence of theft is 10 years' imprisonment, 1,000 penalty units, or both. The maximum penalty for driving a motor vehicle without consent is five years' imprisonment,
500 penalty units, or both.
The theft offence occurred on 29 July 2019 and the offence of driving a motor vehicle without consent occurred on 30 July 2019. You were arrested and charged with these offences and other more serious offences on 31 July 2019. Pleas of guilty were entered at a Criminal Case Conference after the Crown agreed to proffer a fresh indictment, deleting the more serious alleged offences. A trial date had been set for 15 June 2020 but pleas of guilty were formally entered on 13 May 2020.
These pleas were not entered at the earliest opportunity, but they still had significant utilitarian value and the timing of the pleas must be seen in the light of the prosecution having previously laid more serious charges. I propose to reduce the otherwise appropriate sentences by approximately 15 per cent in order to reflect your pleas of guilty.
Convictions on these charges will place you in breach of Good Behaviour Orders which were imposed in the ACT Magistrates Court, a matter that I will return to in a moment.
The facts
I now turn to the facts. On 29 July 2019, you and your co-offender, Stan Hambesis, attended a social gathering at residential premises in the suburb of Holt in the ACT. The victim also attended at those premises. The victim and your co-offender were known to each other. Your co-offender assaulted the victim causing him injuries. After that assault had finished, you told the victim words to the effect that he was not to call police, otherwise things would happen.
You told the victim that his car now belonged to your co-offender and the victim agreed. Your co-offender, at your direction, went outside and retrieved a logbook from the vehicle which had been driven by the victim. Your co-offender took out a piece of paper from the logbook and gave it to the victim and told him to write a receipt out for the vehicle.
The victim complied and wrote out words to the effect of, “I, Simon Evans, hereby sign over Range Rover Sport to Stan Hambesis”, on the page which he then signed and dated. The victim then handed over the car keys to the black Range Rover which belonged to his mother.
Subsequently you and your co-offender left the premises. At that time, you were driving the Range Rover. You knew that you did not have genuine permission or authority to drive that vehicle.
Shortly after 3.00 pm on 30 July 2019, police observed the stolen black Range Rover travelling west on Southern Cross Drive in Holt. Police recognised the driver to be you. Police subsequently spoke with the victim’s mother who confirmed that she was the lawful owner of the Range Rover and that she had not provided permission to any other person, other than the victim, to take or drive the vehicle.
On or about 31 July 2019, members of the New South Wales police force located the black Range Rover at the front of an address in Karabar in New South Wales. Police executed a search warrant and arrested you inside the house. Police searched a bedroom from which you were observed to exit and located the car key to the black Range Rover.
The insured value of the vehicle was $45,000. Your counsel presented evidence that similar vehicles may be purchased for less than that amount, but it was rightly conceded that the vehicle was of significant value on any view of the matter.
Objective seriousness
In assessing the objective seriousness of the offence of theft, I take into account that the victim was vulnerable because he had just been assaulted by your co-offender. The value of the vehicle was significant. The offence was opportunistic but in carrying out the offence, you had an opportunity to reflect on what you were doing, and the offence involved a degree of elaborateness designed to give your conduct the colour of legality. I would assess the offence as just below the mid-range of such offences.
In assessing the objective seriousness of the offence of driving in a motor vehicle without consent, I take into account that the offence was pre-meditated, occurring the day after you stole the vehicle and the value of the vehicle was significant. I would assess this offence as on the border of the low and mid-range of such offences. I do note that in assessing the objective seriousness of both of these offences, I have taken into account the fact, as I understand it, that the vehicle was returned without any damage to it.
Subjective features
I now turn to your subjective features. You have a criminal history from 2016 onwards, mostly for relatively minor offences. Your criminal history does not call for greater weight to be given to personal deterrence.
A Pre-Sentence Report dated 23 October 2019 was tendered at your sentence hearing. This Pre-Sentence Report was actually prepared for ACT Magistrates Court proceedings in 2019.
I note that you are 29 years old and you have been known to ACT Corrective Services since 2015. You have a history of non-compliance with community-based orders. Your behaviour in custody at the time of the preparation of the Report was described as “poor”, but I note that there is no evidence of further issues in custody since that time.
You reported having a supportive and positive upbringing and you continue to have supportive relationships with your parents and siblings. You apparently had the opportunity to have a good education at St Joseph's College in Sydney where you also excelled at rugby. Unfortunately, you rebelled against what you perceived to be your parents' high expectations of you when you were around 15 years old. You developed anti-social relationships and began to use alcohol and cannabis.
Your family moved back to the ACT and you completed your education to the end of Year 10, after which you completed a carpentry apprenticeship. Unfortunately, back in the ACT, you again fell into anti-social friendships. You commenced heroin and methamphetamine use when you were 23 years old and it continues to be problematic for you. At the time of preparation of the Report, you were on
Opioid Maintenance Therapy and you were prescribed methadone.
In December 2016, you were bailed to attend a 16-week drug and alcohol residential rehabilitation program, but you were discharged from the program for drug use after less than two weeks. You successfully applied for the WayBack Program while in custody in late 2019, but you were not able to access that program as you remained in custody since that time.
You have a history of anxiety and depression but there is nothing before me suggesting that they are ongoing conditions. I note that you have employment available to you when you are released from custody. Your prospects for rehabilitation must be considered to be guarded. You clearly have the skills to support yourself honestly and you are fortunate to have continuing family support. You need to address your drug and alcohol abuse and also your attitude to criminal activity.
Consideration
As the Crown submitted, you will require a substantial period of supervision upon your release from custody. The present offences call for the imposition of sentences of
full-time imprisonment. I have considered every other option. I am satisfied that anything less than full-time imprisonment would not be adequate to address the sentencing objectives set out in the Crimes (Sentencing) Act 2005 (ACT).
A substantial degree of concurrency between the sentences for the two offences which are before me today is appropriate, as the same vehicle was involved in each offence. The two offences should properly be seen as part of the one ongoing criminal enterprise.
You have been in custody since 5 July 2019 but the period solely referrable to these charges is 170 days. This would make the commencement date for the sentence I intend to impose 30 December 2019. It is also necessary, however, to consider totality having regard to the other sentence or sentences you have served since 5 July 2019. I will therefore commence my sentences from 30 October 2019.
Sentence
I will record convictions on each of the charges. This places you in breach of a number of Good Behaviour Orders imposed in the ACT Magistrates Court.
On 2 July 2019 on CC5216/2019, a charge of possession of a knife without reasonable excuse, you were sentenced in the ACT Magistrates Court to two months' imprisonment, suspended after serving 1 month and 26 days' imprisonment on condition that you be of good behaviour for a period of 12 months. As I understand it, therefore, there are four days left on that sentence. I will cancel the
Good Behaviour Order and sentence you to imprisonment for four days commencing on 30 October 2019.
On CC5055/2019, a charge of unlawful possession of stolen property, you were sentenced to two months' imprisonment wholly suspended upon entering a
Good Behaviour Order for a period of 12 months. I will cancel the
Good Behaviour Order and impose the sentence of two months' imprisonment, commencing on 30 October 2019 and expiring on 29 December 2019.
On CC5056/2019, a charge of possession of a knife without a reasonable excuse, you were sentenced to two months' imprisonment wholly suspended upon entering a
Good Behaviour Order for a period of 12 months. I cancel the Good Behaviour Order and I impose the sentence of two months' imprisonment commencing on
30 October 2019 and expiring on 29 December 2019.
On 30 August 2018, you were sentenced in the ACT Magistrates Court with regard to a charge of possession of a knife without reasonable excuse, being CC2775/2018. You were sentenced to one month’s imprisonment wholly suspended upon entering a
Good Behaviour Order for a period of 12 months. I cancel the Good Behaviour Order and impose the sentence of one month’s imprisonment, commencing on
30 October 2019 and expiring on 29 November 2019.
On 18 April 2018, you were sentenced to a Good Behaviour Order for an offence of affray in the ACT Magistrates Court, being CC1617/2018. This was not part of a suspended sentence. I am therefore not required by the
Crimes (Sentence Administration) Act 2005(ACT) to cancel the Good Behaviour Order. I will simply order that no further action is to be taken with respect to the breach of that Good Behaviour Order.
On the charge of theft (SCCAN 2020/16), which is before me for sentence today, you will be sentenced to 15 months' imprisonment, which I have reduced from 18 months because of your plea of guilty, commencing on 30 November 2019 and expiring on
28 February 2021.
On the offence of dishonestly driving a motor vehicle (CC 2019/8593), you are sentenced to six months' imprisonment, which I have reduced from seven months because of your plea of guilty, commencing on 30 November 2020 and expiring on
29 May 2021.
The aggregate sentence which I have therefore imposed with respect to the matters that I have dealt with today is a sentence of one year and seven months' imprisonment, commencing 30 October 2019 and expiring on 29 May 2021.
Taking into account the period which you have already served with regard to other offences, effectively meaning that you have been in custody since 5 July 2019, I order that the period commencing on 30 November 2019 and expiring yesterday,
16 June 2020, be served by way of full-time imprisonment.
The balance will be suspended and there will be a Good Behaviour Order for a period of 18 months from today, 17 June 2020, with conditions that:
(a) you are to report to ACT Adult Corrections forthwith;
(b) you are to accept the supervision of the Director-General, or that person's delegate, for the period of 18 months or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of your supervising officer; and
(c) you are to undertake such assessments, counselling or treatment for alcohol and drug abuse as directed by the Director-General or that person's delegate.
[Speaking directly to offender]
Mr Tuifua, the effect of the sentence that I have imposed is that you are entitled to be released today upon a Good Behaviour Order for a period of 18 months, but there is still a period of 12 months which is hanging over your head. If you breach that Good Behaviour Order by failing to comply with the terms of the Order or by committing some further offence within that 18-month period, then you will become liable to serve that further term of 12 months' imprisonment.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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