R v Tukuafu

[2022] NSWDC 717

District Court

New South Wales

Medium Neutral Citation:

R v Tukuafu [2022] NSWDC 717

Hearing dates:

13 December 2022

Date of orders:

13 December 2022

Decision date:

13 December 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 1 year 1 month to be served in the community subject to Intensive Correction Order

Catchwords:

CRIME – Supply prohibited drug - participate in a criminal group

SENTENCING - Relevant factors on sentence – early guilty plea - young immature offender - acting under influence of older brother – parity - lengthy time on remand – deterrent effect of time on remand - need for monitoring and supervision in the community - community safety best served by ICO

Cases Cited:

Clarke-Jeffries v R [2019] NSWCCA 56

R v Tukuafu [2022] NSWDC 671

Category:

Sentence

Parties:

Samiu Tukuafu (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr A Booker (for the offender)

Solicitors:
Morrisons Law (for the offender)
Ms S Knox (for Director of Public Prosecutions)

File Number(s):

2021/00251475

SENTENCE – EX TEMPORE REVISED

Introduction

1. Sentencing judges must attempt to deal with every matter put in dispute and synthesise all relevant factors and explain the reasons for their decision. Today I must be as succinct as possible because it is late in the day and we have already lost video link transmission to Parklea gaol on multiple occasions and will do so again. In light of the orders that I will be imposing, the sooner I can finish it the better. These constraints do not mean however that I can ignore my obligations to give a sentencing judgment.

2. Today Samiu Tukuafu adhered to guilty pleas entered in the Local Court to two serious offences: supplying a prohibited drug, being a quantity of methylamphetamine, and participating in a criminal group. He asks that when I sentence him for the supply matter, I take into account two other supplies on a Form 1.

3. His guilty plea justifies a reduction of 25% on the otherwise necessary sentence to reflect its utilitarian value.

4. The matters on the Form 1 do operate to increase the sentence of the matter to which they relate. I do so as part of my instinctive synthesis approach, but greater weight should be given to personal deterrence and retribution for the crime for sentence. Here, matters on the Form 1 help illustrate the sort of drug supply business that the offender engaged in.

5. There are two matters for sentence. An aggravating feature of the supply offence is that it was part of organised criminal activity. But there is separate charge of participating in a criminal group. And the particulars of participation are essentially the same as the matters that aggravate the sentence for the supply offence’s sentence. Accordingly concurrent sentences are required, because to do otherwise would double count matters going to the seriousness of the principal offence.

Agreed Facts

6. The offender was aged 18 and working in the concreting industry. His brother came under the influence of a member of an outlaw motorcycle gang. His brother did things for that man, involving multiple crimes, including assisting in the supply of cocaine in the local community. I sentenced his brother on 22 November 2022: R v Tukuafu [2022] NSWDC 671

7. Samiu Tukuafu, under the influence of his older brother, saw a much easier way of making money than concreting; which I understand to be a particularly hard occupation. He was young, susceptible, and even more immature than his older brother. The lure of easy money caused him to obtain and then, it would appear from the Form 1 matters, supply illicit drugs in our community.

8. He did so, using the scheme set up by his principal; which involved an encrypted communication platform that by good policing, or good luck, the police were able to crack. The operation involved supply of ounces of cocaine; an ounce being roughly 28 grams. It would appear from the Form 1 matters that for each ounce supplied Samiu Tukuafu would make a profit of about $500. The criminal group was set up for the purpose of theses supplies; one of which is before the Court and the other two on the form 1. I accept that the criminal group may have involved other supplies, but it is upon those that I must focus.

9. The supply matter for sentence (sequence 2), involved the offender attending a premises where, under the direction of his principal, he was told where quantities of cocaine could be found. He took 4 ounces from that secret location, three for himself, one for another person. He also arranged for the supply of another 4 ounces to two other people, a female and a man with the codename Hooligan. The remainder of the drugs that were subject of the conversation were secreted in another location under the direction of the principal.

10. The Form 1s relate to Samiu Tukuafu obtaining the drugs for sale. I think it is inherent in the facts before me, that 3 of the 4 ounces that he obtained would have been distributed by him in the community. He did so for profit.

11. I have to take into account the sentence that I imposed upon his brother. There were different quantities of drugs, and it would appear his brother was more involved in the criminal organisation than him; although he was beginning his life of crime and may have continued in it until he got arrested. It is probably a benefit that he was arrested when he was, because his brother was sentenced for the far more serious crimes that his criminal peers got him involved with.

Assessing Seriousness

12. When assessing the seriousness of these offences I have regard to, not just the quantity of the drug supplied but, the nature of the criminal operation, the fact that the drugs were supplied for gain and the role played by the offender.

13. Although Samiu Tukuafu may have supplied to users directly he was not at the bottom of any hierarchy given that the quantities he obtained were in ounces or 28-gram units. Further as is obvious from the criminal group charge and the three examples, the subject of the form 1 that the supply for sentence was not an isolated occasion.

14. The parties now agree that those hose matters do not put Samiu Tukuafu in the middle of the range of objective seriousness, however that range is calculated, nor do they put him in the very bottom of the range.

15. It is accepted by the defence, and stressed by the prosecution, that this is the sort of matter where anyone, no matter how young or impressionable, risks a substantial gaol sentence. That submission is reinforced by the directions of the Court of Criminal Appeal that meaningful penalties have to be imposed in such matters. Anyone who engages in the distribution of drugs in our community has to understand the consequences of doing so. Those tempted to offend as Samiu Tukuafu did must understand that if they are offered the chance of easy money by distributing drugs they will, if caught, risk going to gaol.

16. Mr Booker, who appears for the offender, submits that the fact that Samiu Tukuafu has now just turned 20 has meant that over one-twentieth of his short life has been spent behind bars. I am sure the consequences of offending have been brought home to him. But it must also be brought home to other young people, that the risk is not worth it.

17. So serious are these matters that custodial sentences are warranted.

Other matters

18. I have taken into account as an aggravating feature that Samiu Tukuafu had come before the Court and was on conditional liberty at the time. He was given bail but was unable to keep two of his bail conditions.

19. I also note he has served the best part of one year and two months in custody.

20. While there is no evidence before me of any direct consequences, he has served the entire period during the COVID pandemic. I can have regard to the evidence I have received on many other occasions that gaol is much harder during the pandemic than it has ever been before, in recent memory at least. Programs are disrupted, work is disrupted and visits are disrupted. And, as has been obvious today, communications from outside the gaol are disrupted. Prisoners are regularly locked down in their cells. I do not underestimate the lived experience of gaol, particularly during a pandemic, and where prisoners are locked in cells.

21. The community should understand what our gaols are like. Cells are small, they are shared, there is a toilet in a cell. If you are locked in a cell you eat in the same place you excrete. Gaols are not pleasant, they are nasty, violent places.

The case for the offender

22. I have the benefit of a Sentence Assessment Report. It sets out positives in Samiu Tukuafu’s young life. It notes his capacity to work hard and the support he has from his mother and family. It also indicates that while he has some understanding of the negative impact illicit substances have on others, he is still immature.

23. It is suggested that he is at medium risk of reoffending and that supervision may reduce that risk. If supervised, he can be referred to appropriate alcohol and drug rehabilitation services for relapse prevention. He can go to the Salvation Army for financial counselling. He can complete EQUIPS programs and engage in other interventions. He can also do community service work.

24. The offender did not give evidence, but I have the benefit of a report from Ms North, forensic psychologist. Its contents are not controversial, sad though they are. She had an opportunity of assessing and applying her professions skills and testing to the offender. In her assessment his background reveals a young man who had a difficult upbringing. He witnessed domestic violence in the home. His father left the family when he was quite young and his mother was left, without many resources, to supervise six children.

25. Samiu Tukuafu had learning difficulties at school. He truanted and went to support classes. He was assessed as possibly having ADHD. Ms North’s testing reveals symptoms consistent with that diagnosis. His learning problems have been helped by literacy and workplace safety courses through the Correctives Education Centre. He has worked in gaol as a sweeper.

26. He came in contact with drugs and alcohol when far too young to make rational choices about using such substances. His decline in behaviour, coincided with his older brother getting into trouble. He then, as is clear from the facts in this matter, came to associate with his brother’s criminal associates.

27. Ms North says that his history made him vulnerable to the influence of his peers, particularly his older brother. Despite the stability in his homelife his mother tried to provide, Ms North is of the opinion that he has poor consequential thinking skills and psychosocial immaturity. She believes that he would be assisted by counselling, to deal with his drug and alcohol problems. She too supports his attending the Equips Addiction and other programs. He would benefit from doing the High Intensity Program Unit, but that is only available to sentenced prisoners. She believes he will need supervision and management in the community.

28. He is still young, he is still immature, he has a lot of growing up to do. The law recognises the potential for cognitive, emotional and psychological immaturity of young people to contribute to their breaches of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person’s mid-twenties: Clarke-Jeffries v R [2019] NSWCCA 56.

Synthesis

29. Sentences should, as far as possible, operate not just to punish but to protect the community from further offending by this offender and others. Removal of a person from the community by gaoling them can achieve only short-term protection, as they must be returned to the community. Protection of the community is helped by the successful rehabilitation of others. It is also helped by the deterrent impact of gaol, although the effectiveness of that impact is regularly debated.

30. I hope the one year two months already spent in custody will operate to deter this offender from doing similar things in the future. The lengthy sentence imposed on his brother should be a lesson to him, probably a better lesson than the prospect of easy money.

31. The community also has to understand the consequences of committing crimes such as this and the impact of gaol on them. Where a young, immature, person is in gaol for over a year for their first really serious offending there is a risk that the negative learning experience of gaol will be more important than the positives. If a sentence has the effect of turning an offender away from a criminal way of life then the community is protected. If the effect of a sentence is to allow the offender to continue to mix with other criminals and turn him, as his brother was turned, towards a criminal way of life, community safety is impaired.

32. Mr Booker seized on that point in his submissions today. He submitted that there were a number of options available to the Court. He drew my attention to the sentence imposed on the brother and the difference in their antecedents. He said it would be fair and just to expect that a lesser sentence would be imposed on this offender than on his brother, if only marginally. He noted Samiu Tukuafu had a stronger subjective case, particularly given youth, and immaturity. He said that when one took into account the period spent in custody it would mean that the non-parole period of the sentence may have, in his submission would have, been served or maybe close to expiring. He accepted that to come to that conclusion would require a substantial finding of special circumstances, but he submitted that age, immaturity, the fact that his criminal career was nipped in the bud by prompt police action, made a substantial finding justified.

33. Mr Booker’s ultimate submission was that the community would be better protected, and community safety would be better protected by an even more intensive regime than provided by parole. He said an intensive correction regime may, in fact, be tougher on the offender than simple release to parole, or a further period in custody; because if I was not imposing an ICO he may have spent slightly longer in custody.

34. I have balanced the various risks. There is a need for Samiu Tukuafu to engage in supervision as soon as possible. Community service is available as an option as part of an Intensive Corrections Order (ICO), the balance of the sentence should best be served by way of intensive correction in the community.

35. For transparency’s sake, I note I worked on the principle that had it not been for his plea of guilty a sentence of three years would have been imposed, taking into account the Form 1. And for the supply offence a concurrent sentence of 12 months for the participate in criminal group.

36. After the plea is taken into account that leads to an aggregate sentence of two years and three months. As there are two matters for sentence an ICO is an available option. Samiu Tukuafu has served one year two months. While I could release him to parole, had I not had an Intensive Correction Order as an option I probably would have allowed for a few more months in gaol, but he can make up that difference by doing community work. I believe the ICO option trumps the others, having considered the paramount consideration of community safety.

37. What that means is you will be released today, Mr Tukuafu. What that means is that you must report to Community Corrections Mt Druitt within seven days.

38. It is a condition of the Intensive Correction Order that you be of good behaviour. That is critical. Do you understand?

OFFENDER: Yeah, I do.

39. You must accept the supervision and engage in the supervision plan set out as directed. You must perform 250 hours of community service.

40. The term of the order, as I have calculated it takes into account the time served, is one year and one month. The sentences reflect time served and the plea of guilty to explain why they are, on their face, inadequate.

Orders

41. Having made those calculations, the formal order of the Court are:

You are convicted. For the supply I indicate a sentence of one year and one month imprisonment and for the criminal group offence I indicate a sentence five months imprisonment.

You are sentenced to an aggregate term of imprisonment to be served by way of intensive correction in the community in accord with the Crimes (Administration of Sentence) Act 1999 for a period of 1 year 1 month.

Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an intensive correction order. The sentence will commence on 13/12/2022.

You must report to the Community Corrections Office at Mount Druitt as soon as practicable but no later than 7 days from 13/12/2022.

The standard conditions of the order apply:

1. You must not commit any offence; and

2. You must submit to supervision by a community corrections officer.

The following additional conditions apply:

3. a community service work condition requiring the performance of community service work for 250 hours.

4. To accept the guidance and supervision of Community Corrections NSW and obey all reasonable directions of that service.

5. Engage in supervision plan as directed by Community Corrections

**********

Decision last updated: 10 March 2023