R v Tuifua (No 3) - [2021] ACTSC 149

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tuifua (No 3)
Citation:	[2021] ACTSC 149
Hearing Date:	21 July 2021
DecisionDate:	21 July 2021
Before:	Burns J
Decision:	See [11]–[15]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach Good Behaviour Order attached to suspended sentence – ride or drive motor vehicle without consent – consideration of offender’s prior opportunities to comply with Good Behaviour Orders
Legislation Cited:	Crimes (Sentence Administration Act) 2005 (ACT), s110
Parties:	The Queen (Crown) Sione Feiloakitau Tuifua (Offender)
Representation:	Counsel R Christensen (Crown) J Robertson (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) JDR Law (Offender)
File Number:	SCC 288 of 2019

BURNS J:

The offender, Sione Tuifua, appears before me today, 21 July 2021, to be dealt with on a breach of Good Behaviour Orders that were imposed by myself on 17 June 2020. The particular offences upon which Mr Tuifua will need to be re-sentenced today are CC 2019/8593, a charge of riding or driving in a motor vehicle without consent, in which I imposed a sentence of 6 months' imprisonment, and CC 2020/16, a charge of theft, in which I imposed a sentence of 15 months' imprisonment.

The sentence was structured such that in effect, the sentence imposed was to be served partially consecutively and partially concurrently, and that a period of approximately 11 months and 12 days was to be suspended with regard to those particular offences.

Mr Tuifua was convicted in the ACT Magistrates Court of an offence of possession of a drug of dependence and was sentenced to six months' imprisonment. The offender was re-sentenced to three months' imprisonment, from 11 January 2021 to 10 April 2021 in that Court. The offender was also sentenced to six months' imprisonment, in relation to a charge of unauthorised possession of two firearms.

Those sentences were aggregated to the extent that a sentence of seven months' imprisonment was effectively imposed, commencing on 11 January 2021.

Consideration

When I am satisfied that an offender has breached a Good Behaviour Order attached to a suspended sentence, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provides me with only two options. I am obliged to cancel the Good Behaviour Order and I may then either re-sentence the offender or, alternatively, I may impose the sentence which was suspended.

The submission which has been made on behalf of Mr Tuifua, is that I should, in effect, impose the same sentence that I imposed last year but suspend the operation of that sentence with similar conditions to those which I imposed last year.

In that regard, I have drawn Mr Tuifua's counsel's attention to the criminal history of Mr Tuifua and, in particular, to the fact that he has been given multiple opportunities to comply with Good Behaviour Orders imposed in the courts of this Territory. They do not seem to have operated so as to reform him or deter him from committing further…

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 Tuifua (No 3)

Details

AGLC: R v Tuifua (No 3) [2021] ACTSC 149
Case: [2021] ACTSC 149
Decision Date

CaseChat Overview and Summary

The case of R v Tuifua (No 3) involved Sione Tuifua, who was brought before Justice Burns in the Supreme Court of the Australian Capital Territory on 21 July 2021. The offender, Tuifua, faced proceedings for breaching Good Behaviour Orders that had been imposed on 17 June 2020. These orders were related to charges of riding or driving a motor vehicle without consent and theft. Tuifua had previously been sentenced to six months' imprisonment for possession of a drug of dependence and six months for unauthorised possession of two firearms, with the sentences to be served concurrently. The court was tasked with deciding how to address the breaches of the Good Behaviour Orders.

The legal issue before the court was whether to re-sentence Tuifua for the breaches, considering the multiple opportunities he had been given to comply with previous Good Behaviour Orders. Tuifua's counsel argued for a re-suspension of the original sentence with similar conditions. However, the court took into account Tuifua's extensive criminal history, which raised doubts about his ability to reform or abstain from criminal activities. Justice Burns decided to cancel the Good Behaviour Orders, re-sentence Tuifua to an aggregate of 11 months' imprisonment, and set a non-parole period, allowing the Sentence Administration Board to monitor his progress and determine the conditions of his release.

The court found that imposing the same sentence as before, with an aggregate of 11 months' imprisonment, was appropriate. This decision was made to reflect the offender's persistent breaches of Good Behaviour Orders and to provide an opportunity for the Sentence Administration Board to closely monitor Tuifua's progress in custody. The court also recommended that if any early release was considered, it should be conditional on Tuifua undergoing residential drug rehabilitation. This approach aimed to address both the immediate breach and the underlying issues contributing to Tuifua's repeated offending behaviour.

Orders