Regina v Tenaku Tuatara

[1999] NSWCCA 242

CITATION:	Regina v Tenaku Tuatara [1999] NSWCCA 242
FILE NUMBER(S):	CCA 60685/98
HEARING DATE(S):	28/6/99
JUDGMENT DATE:	28 June 1999
PARTIES :	REGINA v Tenaku TUATARA
JUDGMENT OF:	Sully J; Bell J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0271
LOWER COURT JUDICIAL OFFICER:	Luland DCJ

COUNSEL:	In person (Appellant) L.M.B. Lamprati (Crown)
SOLICITORS:	In person (Appellant) C. K. Smith (Crown)
CATCHWORDS:
ACTS CITED:	Crimes Act 1900
DECISION:	Leave to appeal granted.; Appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60685/98

SULLY J
BELL J

28 June 1999

REGINA v Tenaku TUATARA

JUDGMENT

1   SULLY J: On 28 October 1998 the present applicant, Tenaku Tuatara, stood for sentence before his Honour Judge Luland in the District Court then sitting at Parramatta.
2 The applicant had earlier pleaded guilty to a charge of break enter and steal, a charge contravening s 112 of the Crimes Act 1900 and carrying a statutory maximum penalty of penal servitude for fourteen years.
3   The learned primary Judge sentenced the applicant to a minimum term of penal servitude for twelve months to commence on 7 June 1999 and to expire on 6 June 2000 with an accompanying additional term of penal servitude for eighteen months to commence on 7 June 2000 and to expire on 6 December 2001. The applicant seeks leave to appeal against the severity of that sentence.
4   The material facts are within a small compass and can be extracted as follows from the remarks on sentence of the learned primary Judge:

"The facts are that she was sentenced to a term of imprisonment of fifteen months minimum term. She received that sentence on 23 January 1998. She had been in custody for some period prior to that and was serving that sentence at the Emu Plains Detention Centre when she and another female broke out of that gaol and whilst an escapee from that sentence she broke into premises at Rydalmere by forcing open a closed and locked side window having cut through the flyscreen.

In the premises she stole a relatively large quantity of property amounting to the value of some $3,500 approximately. She was arrested some days later when recognised as an escapee. She first denied her involvement in the break and enter. It was only after her fingerprints were found and made known to her that she then admitted her offence.”

5   The learned sentencing Judge expressed the view that the applicant had shown, in his Honour's perception of the facts, very little in the way of contrition; but his Honour accepted that she had shown some contrition, and was entitled to some proper consideration in that regard.
6   His Honour spoke in general and denunciatory terms of the seriousness of the offence in question. It is not necessary to say more than that his Honour's comments as recorded in the published remarks on sentence were entirely to the point, and that I agree entirely with what His Honour said.
7   His Honour noted the relevant subjective aspects of the applicant's case including, as they do, her comparatively young age and the usual sad and unsettled personal and family circumstances that are so often found in cases of this kind.
8   His Honour took into account, and correctly so in my view, that not only was the offence for which he was sentencing the applicant a serious offence in its own terms, but that it was as His Honour put it:

"The more serious following her escape from lawful custody when she was serving a prison sentence for the very same offence."

9   I agree with those comments.
10   The applicant has put before the Court a three page manuscript document which the Court has received and marked as Exhibit B in connection with the present application. The document sets out clearly some significant compassionate matters to which the Court is asked to have regard. It is not necessary, I think, to traverse the fine detail of what is said in the document. It is, as I have said, clear in its terms and it can be left to speak for itself.
11   Accompanying it is a letter from the Criminal Deportation Section of the Department of Immigration and Multicultural Affairs, which letter has been received by the Court and marked as exhibit A on the present application. That letter confirms formally that a Deportation Order has been signed against the applicant and will be enforced according to its tenor as soon as she has served her current sentence of imprisonment, which I understand to mean the minimum term put on her current sentence of imprisonment.
12   I have considered the matters to which the applicant points in her manuscript document. I acknowledge that they are in their own terms sad matters and matters to attract a proper sympathy. The fate of the present application does not depend upon considerations of that kind. The fate of the present application depends, initially at any rate, upon it being made clear that the sentencing Judge erred in some such way as might be thought to call reasonably for the intervention of this Court. It is not to the point that the members of this Court, had they been the primary sentencing Judges, might have taken a different or a more lenient view of the matter than was done by the primary sentencing Judge.
13   The essential question, as I have said, is whether it has been demonstrated that there is some error in the sentencing process disclosed by the remarks on sentence. I do not think there is. I think that the learned primary Judge was adequately seized of the relevant objective and subjective matters, and brought them into an overall balance that yielded a sentence that is, in my opinion, well within the range of sentence available in the exercise of a sound sentencing discretion.
14   These are serious offences. The community does expect them to be put down with all proper resolve. I think that is the view that was taken by the primary Judge. I think it was a correct view; and I think that, as reflected in the sentence, it is a view that this Court is not justified in reviewing. Because of the seriousness of the matter from the applicant's personal point of view, I would grant the application for leave to appeal but I would dismiss the substantive appeal against sentence.
BELL J: I agree.

**********