R v Tuimauluga; R v Puru; R v Zechel
[2013] NSWDC 29
•29 January 2013
District Court
New South Wales
Medium Neutral Citation: Rv Dejong; R v Tuimauluga; R v Puru; R v Zechel [2013] NSWDC 29 Hearing dates: 29 January 2013 Decision date: 29 January 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment - For the offender Tuimauluga, he is sentenced to a non-parole period of eight and a half years and a period of eligibility for parole of four years.
Mr Zechel, I set a non-parole period of eight years with an eligibility period of parole of four years.
Mr Puru is sentenced to imprisonment for the break, enter and steal offence to a fixed term of imprisonment of three years. For the aggravated break, enter and steal offence he is sentenced to imprisonment to a non-parole period of eight years with a period of eligibility for parole of four and a half years, making a total sentence in Mr Puru's case consisting of a nine year non-parole period and a thirteen and a half year head sentence.
In Mr Dejong's case, I set a non-parole period of eight and a half years and a period of eligibility for parole of four years.
Catchwords: CRIMINAL LAW - Sentence- Form 1 - Home invasion - Offence committed in the presence of children - Break enter and Steal - One offender on 2 x s 9 bonds at time of offence Category: Sentence Parties: The Crown
Daniel Warren Dejong
Billy Tuimauluga
Tahi Paul Puru
William John ZechelRepresentation: Mr J Booth - Dejong
Mr G Sundstrom - Tuimauluga
Ms A Moens - Zechel
Director of Public Prosecutions
John Anthony Solicitors - Puru
Legal Aid Commission - Dejong
File Number(s): 2011/218064; 2011/218066; 2011/277328; 2011/219572; 2011/218069
Judgment
HIS HONOUR: Home invasions are all serious offences but some are worse than others. The offence I am about to describe is getting close to the worst kind of offence of that type.
As will be obvious when I recite what occurred on 4 July 2011, the four offenders for sentence today carried on their terrifying and violent conduct in the presence of not only frightened adults but also in the presence of children. Common decency and humanity might have led to these offenders altering their behaviour once they became aware that they were going to commit their serious, violent, and terrifying conduct in the presence of young children. One might have thought they would immediately turn and leave, but they did not. They persisted in what they had planned to do. They deserve to go to gaol, each of them, for a long time, simply to reflect the objective gravity of their criminal conduct.
What occurred on 4 July, or more accurately I suppose the following morning, on the fifth, is set out in a statement of the primary victim of that offence, a Mr Ty Cruickshank. He was living with his girlfriend and her four children in a home at Woodberry. One of his girlfriend's children was not there that morning but another child was. There were thus four children from age two or three to age ten present in the home. Also was another adult, Mr Cruickshank's girlfriend's brother.
Everyone appears to have been asleep at 3 o'clock in the morning when there was a loud bang coming from the front door. Mr Cruickshank looked towards the doorway and saw a person standing in the wide open doorway. He was carrying a rifle. He came over and pointed the rifle at
Mr Cruickshank's head and said, "Shut up." Three other men then came through the front door.
Mr Cruickshank got up - he had been lying on a mattress in the lounge room - and his girlfriend woke up and said something. The first man who had come in, the man armed with the rifle, pointed the rifle at Mr Cruickshank's girlfriend's head and pulled the trigger. The rifle was only a few inches away from her face when he did that. The trigger just clicked and no projectile was discharged. One can only imagine the terror that must have been felt by Mr Cruickshank and his girlfriend when that occurred.
It was clearly an action designed to ensure that the occupants of the house would comply with the demands of the invaders, through creating awful feelings and apprehension.
The men then began yelling and demanding property, money, phones and wallets. Not content with simply making verbal demands, the men - and I interpolate here to say that no one has suggested that there should be any distinction between the actions of one offender as compared to another - took some meat from a freezer, and a money tin containing coins. Others of the invaders were going throughout the house, searching for property.
One of the men hit Mr Cruickshank in the face with either his fist or the bottom part of the rifle.
Mr Cruickshank's girlfriend's brother was discovered and he too was asked for money and phones. The offenders collected computers but made further demands for cash and wallets. Mr Cruickshank told them that they had everything. He says in his statement,
"By that time they had already taken the meat from the freezer, the money from the money tin, a few old mobile phones, the two laptops from my room and another laptop which was in the lounge room."
He had nothing left to give and yet the offenders were not satisfied.
Given what he had previously seen, the firearm pointed at his girlfriend and the trigger pulled, the fact that he could not satisfy their further demands must have only added to the terror which he felt.
Still, the invaders continued. One of the them lifted up the mattress that Mr Cruickshank and his girlfriend had been sleeping on. He lifted up the lounge chairs and checked under the fish tank. And they kept making further demands for drugs and money.
It was then that Mr Cruickshank noticed that one of the other men - when I say "one of the other men" I mean one of the men not holding the rifle - was also armed. He had a knife in his left hand and a taser in his right hand. The knife appears, from the description he gave, to have been a particularly threatening looking weapon. Mr Cruickshank had the knife pointed at him. He was told to put the laptops in the laptop bag but before he did so, cleverly, the invaders wanted to make sure that they could use the laptops and that there was no password protection. In fact, so careful were the invaders, so rational was their thinking, that Mr Cruickshank was made to turn on the computer to show that it was not password protected. Still the invaders continued.
They made a demand for the car keys because they wanted to search the car. The man with the taser then turned it on. There was a blue spark at the front and it made a loud electrical noise. Both Mr Cruickshank and his girlfriend, not surprisingly, became even more apprehensive at this turn of events. The man with the taser walked towards them, pointing the taser at them and saying, "Do you fucking want it?" Then they left with a parting shot. One of the men said, "If we find out you've got more money, we'll be coming back" and they left the house.
I am sure that the value of the property taken from Mr Cruickshank and his family is of little importance to them when compared to the terror that they suffered but it is to be noted that the invaders took three laptop computers, about six or seven mobile phones, most of which did not work, and about $330 in cash, along with a few old ipods and USB sticks.
It appears, as far as the children were concerned, that only the youngest, aged two or three, was actually present in the lounge room where most of the events I have described took place. The ten year old remained in a bedroom but it appears that she was aware of what was going on. The invaders cannot suggest that they were not even aware that the two year old was there because at one stage they suggested that her face be covered. This was relied on by the offenders, or at least some of them as suggesting that they retained a modicum of decency and feelings towards the young child. I find that difficult to accept. Even if such actions do show a small amount of compassion, it is swamped, it is overwhelmed by the inhumanity that they otherwise displayed early that morning.
The offenders were arrested not long afterwards. Police stopped a motor vehicle for a random breath test. Three of the offenders were inside the vehicle at the time. Police noticed that they were trying to hide things and so they searched the offenders and the car. Incriminating items were found, including weapons, including the taser and they were all arrested and taken to the police station.
Mr Puru, the man who was not in the car, was arrested a short time later.
The maximum penalty for the offence of specially aggravated break, enter and steal is twenty-five years imprisonment. It carries a non-parole period of seven years. I have taken into account both the maximum penalty and the standard non-parole period in formulating the appropriate sentences in this case. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence.
The maximum penalty is reserved for offending in the worst category of offending. Of course it is always possible to imagine criminal conduct worse than any other criminal conduct, so that is not the test as to whether particular criminal activity comes within the worst category of offending. It has to be said that the behaviour of the four men that morning is approaching the worst category of offending of this type.
Mr Cruickshank's injuries appear to have been less than are commonly occasioned through home invasions and there was limited actual violence but, as I hope to have made clear, the intense fear that must have been occasioned in the residence of the home that morning is enormous.
The four offenders, of course, all have different backgrounds. Some are relatively old and have nothing approaching offending of this seriousness on their criminal histories.
Mr Tuimauluga is now thirty-nine years of age. He was born in New Zealand to Samoan parents. He came with his parents to Newcastle, they were seeking employment opportunities and an improved standard of living. He is the eldest of six children and he is the only one in his family to have a criminal history.
His parents clearly loved him, although they would discipline him physically in a way which, I venture to suggest, would not be accepted in modern society but Mr Tuimauluga himself accepted that they engaged in that discipline because they loved him and because he was behaving badly.
There is no suggestion that what I would describe as excessive discipline of a physical kind metered out to Mr Tuimauluga when he was a child played any part at all in his decision to commit this offence.
Mr Tuimauluga's criminal history reveals no other offending remotely as serious as this. There is no offence of break, enter and steal. There is an offence of assault occasioning actual bodily harm but that cannot have been too serious because he was dealt with by a fine of $300.
Mr Tuimauluga has done much in his past that he is entitled to be proud of. He spent seven years as a youth worker and is a matter of great shame to him that he now, in custody, runs into some of his former clients. He also has a good work history. He was working in the mining industry earning good money at the time he committed this offence.
There is one particular dark aspect of Mr Tuimauluga's life. It concerns the death of his sister. It is suggested that Mr Tuimauluga took this particularly badly and that this was a factor in him using excessive quantities of alcohol and drugs at the time the offence was committed.
Mr Tuimauluga says he told a psychologist who interviewed him for the purposes of these proceedings that he has no memory of what he did. In particular, he has no memory of being involved in this offence. It is for that reason, I am told, that his plea of guilty came quite late and only around the time that his trial was due to commence.
Of course, that does not affect the circumstances of the utilitarian benefit because of the late plea is reduced. I will discount the sentence I would otherwise have imposed by about 10 per cent to affect the utilitarian value of his plea.
The explanation for the late plea is also put forward as explaining why a man who says he is remorseful can still only admit what he has done at a late stage. It is suggested that it was only after Mr Tuimauluga spoke to his co-offenders, who told him that he was involved in the offence, that he accepted that he was and thus pleaded guilty.
I accept that Mr Tuimauluga is remorseful for what he has done. He did not give evidence (and in fact no offender gave evidence) saying he was sorry but in Mr Tuimauluga's case I accept, based on the contents of the psychological report, that he is sorry for what he did and, indeed, he has difficulty understanding why he might have done such a terrible thing.
Given Mr Tuimauluga's lack of memory, there is some degree of speculation as to the circumstances that led to him becoming involved in the offence. For example, the psychologist writes:
"I further suggest that if Mr Tuimauluga's co-accused suggested they engage in criminal behaviour, Mr Tuimauluga would have perceived backing out as a sign of weakness and suggestive that he was not a real man."
It is entirely speculative as to whether it was Mr Tuimauluga's co-accused who suggested they engage in criminal behaviour or Mr Tuimauluga himself. No material I have read suggests that one version should be favoured over the other.
In contrast to Mr Tuimauluga, when I turn to Mr Zechel I know very little about him. No evidence was called on his behalf and he did not give evidence either. There was no pre-sentence report prepared in relation to him. I know only what appears in the material tendered by the prosecution.
Mr Zechel is fourty, has a criminal history which suggests that his offending on this occasion is out of character and I know little else about him.
Ms Moen, who appears for the offender, said that her client expressed his remorse in circumstances where there is not the slightest bit of evidence - and I emphasise the word "evidence" - to justify a finding that the offender was remorseful. I do not propose to make that finding in the offender's favour.
He pleaded guilty at an early opportunity and so the sentence that I will impose upon him is 25 per cent less than it would otherwise have been.
Mr Puru faces other charges that his co-offenders do not. He pleaded guilty to an offence of break, enter and steal committed on 16 June 2011. On that occasion the offender broke into premises and stole some of the very firearms used in the later more serious offence.
A short time before hand, on 1 June 2011, the offender had also committed another break, enter and steal offence. That is on a Form 1 attached to the break, enter and steal offence committed a couple of weeks later. On this occasion the offenders broke into a hairdressing salon. Once inside, Mr Puru and his co-offender ransacked the business, stole a large amount of money from the till and a computer. They then escaped by kicking their way through a gyprock wall.
Mr Puru is significantly younger than Mr Zechel and Mr Tuimauluga. Despite that, he has managed to accumulate a substantial criminal history, including for acts of violence, break, enter and steal and robbery matters.
He has been supervised by Probation and Parole in the past with mixed results.
He is now twenty-five. He lived early in his life with his mother and father in Cardiff. His parents separated when he was about ten, or in his early teens perhaps and at some stage in his early childhood he ran away from home and lived on the streets. His parents tried to get him back on the straight and narrow. They sent him to New Zealand to live with his father's family but that was not terribly successful. Whilst in New Zealand he got himself into trouble with the law for stealing cars and using drugs and when he came back to Australia he lived with his mother for only a short time before he left again to live on the streets.
Although Mr Puru has some qualifications as far as work is concerned, he has had no significant employment since leaving school. This is what he told Probation and Parole:
"I was too lazy and did not want to work or be told what to do."
At the time of the offence he had been unemployed for about four months. He had been working at a chicken factory but got the sack because he did not turn up for work.
Of course, some explanation needs to be found as to why Mr Puru would commit this offence and it is not surprisingly related to drug and alcohol use. He began consuming alcohol about the age of ten and began to use drugs a little while later. He was a heavy user of drugs by his mid teens. He had accumulated debts to drug suppliers at the time of this offending and he needed to pay them off but he also wanted to get more drugs.
I have to say that using drugs is a very selfish activity. It also must be remembered that it is an illegal activity. It does not at all reflect well on Mr Puru that what motivated him to get involved in this most terrifying offence was simply so that he could pay off drug debts and get more drugs.
I note that the probation officer suggests that the offender has acknowledged that his offending behaviour is related to his illicit substance abuse and anti-social associates and that if he is to have any chance of leading a lawful life he will need to address his addictions. I think that almost goes without saying.
What I have learnt about Mr Puru, when dealing with this matter, is that he will, unless he changes his ways, continue to use drugs and that will result in a continuation of offending unless he is prepared to do something about the way he has lived his life until now. It may well be the case that Mr Puru will benefit from long term residential rehabilitation.
The period of eligibility for parole, which must necessarily be long when a long sentence is imposed, will allow the parole authorities to decide whether it should be a condition of Mr Puru's release to parole that he complete a residential rehabilitation program. That, of course, will be a matter for them and not for me.
In case I have not mentioned it, I should emphasise that Mr Puru's decision to plead guilty to his offending came at an early stage and so the sentences I impose upon him will be 25 per cent less than they would otherwise have been.
I come now to Mr Dejong, also a comparatively young man who pleaded guilty at an early stage. He was on two section 9 bonds at the time he committed the offence for which he must be sentenced. He too has a criminal history which commences in the Children's Court. There are some relatively serious matters, offences such as break, enter and steal and aggravated robbery. He too has accumulated a criminal history of rather impressive length in his relatively small number of years.
Mr Dejong is the second of four siblings who lived with his mother and step-father in the Newcastle area before his arrest. He described a supportive relationship with all his family members. His mother, who was interviewed by the Probation and Parole Service confirmed that this was the case. Mr Dejong blamed irregular contact with his biological father for his dysfunctional upbringing.
Mr Dejong completed Year 7 at high school and was expelled during Year 8. He has problems, of course, therefore, with literacy. He has never held employment and was receipt of a disability pension following an injury to his foot at the age of fifteen.
He too commenced using drugs at a relatively early age. He was binging on alcohol at times.
He shows a bit of an insight too because he admitted to the Probation and Parole Service that his lack of pro-social activities and his choice of anti-social peers have contributed to his offending behaviour. He agreed with the police facts and expressed a need for some help in the future.
Along with many people who appear for sentence in these courts, it was substance abuse which is likely to have been the major factor in Mr Dejong's criminal behaviour. He was a drug addict and he committed these offences to satisfy that addiction.
Various courts have looked at the issue of whether drug use and drug addiction can be a mitigating factor. True it is that Mr Dejong's use of drugs began at an early age but many people would be concerned at any suggestion that a person who decides to continue to use drugs and to continue to commit offences to satisfy that drug addiction should receive a lower penalty simply because of that circumstance.
Mr Dejong's drug addiction may explain what he did but a motivation consisting of a desire to continue to commit other offences (buying and using drugs) by committing this serious offence can not have a significant effect by way of reducing the sentence that I must impose upon him.
Mr Dejong also expressed his remorse in a pre-sentence report and I make a finding in his favour in that regard.
One other matter I should mention is that no offender should have a justifiable sense of grievance when he compares the sentence imposed upon him with the sentence imposed upon his co-offenders. They are all individual offenders and although no one has suggested that objectively their behaviour was any different to the objective behaviour of their co-offenders, subjectively and procedurally there are differences which have led to different sentences being imposed.
The commencement dates of these sentences that I am about to announce have all been agreed based on the offender's pre-sentence custodies.
For the offender Tuimauluga, he is sentenced to a non-parole period of eight and a half years and a period of eligibility for parole of four years to date from 21 November 2011.
Mr Zechel will be sentenced to imprisonment. I set a non-parole period of eight years with an eligibility period of parole of four years to date from 10 November 2012.
Mr Puru is sentenced to imprisonment for the break, enter and steal offence to a fixed term of imprisonment of three years to date from 7 November 2011. For the aggravated break, enter and steal offence he is sentenced to imprisonment to a non-parole period of eight years with a period of eligibility for parole of four and a half years to date from 8 July 2012, making a total sentence in Mr Puru's case consisting of a nine year non-parole period and a thirteen and a half year head sentence.
In Mr Dejong's case, I set a non-parole period of eight and a half years to date from 4 October 2011 and a period of eligibility for parole of four years.
It will be obvious I have made a finding of special circumstances in each case.
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Decision last updated: 04 April 2013
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