Saipani v The Queen (No 2)

[2021] ACTCA 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Saipani v The Queen (No 2)

Citation: 

[2021] ACTCA 8

Hearing Date: 

On the papers

Decision Date: 

16 April 2021

Before: 

Burns, Loukas-Karlsson and Charlesworth JJ

Decision: 

See [19]

Catchwords: 

COURT OF APPEAL – SENTENCE – Re-sentence – joint commission of aggravated burglary – multiple co-offenders – where offences occurred in context of “home invasion” –

consideration of risk of appellant’s deportation – application of

Ngata v The Queen [2020] ACTCA 18 – parity – where appellant’s

co-offenders entered guilty pleas to significantly lesser charges

Legislation Cited: 

Migration Act 1958 (Cth)

Cases Cited: 

Lowe v The Queen (1984) 154 CLR 606
Ngata v The Queen [2020] ACTCA 18

Saipani v The Queen [2021] ACTCA 5

Parties: 

Javarne Saipani (Appellant/Offender) The Queen (Respondent/The Queen)

Representation: 

Counsel

J Purnell SC (Appellant/Offender)

R Christensen (Respondent/The Queen)

Solicitors

JDR Law (Appellant/Offender)

ACT Director of Public Prosecutions (Respondent/The Queen)

File Number: 

ACTCA 26 of 2020

Decisions under appeal: 

Court:	Supreme Court of the ACT
Before:	Murrell CJ
Date of Decision:	18 August 2020
Case Title:	R v Saipani (No 2)
Citation:	[2020] ACTSC 228

THE COURT: 

1.       On 19 February 2021, the Court heard an appeal by the appellant against his conviction for an offence of aggravated burglary and against the sentence imposed by the primary judge. At the conclusion of the hearing of the appeal the Court announced that it would

uphold the appellant’s appeal against sentence but would dismiss the appeal against

conviction. No formal orders were made at that time as it was necessary to hear further submissions and perhaps receive further evidence before re-sentencing the appellant. On 12 March 2021, the Court handed down its reasons for reaching the conclusions that it did on 19 February 2021 in Saipani v The Queen [2021] ACTCA 5.

2.       We have received submissions on re-sentencing from both the appellant and the respondent. In addition, we received without objection two letters written in support of the appellant, to which we will refer in a moment. To finalise this appeal, we must make final orders including re-sentencing the appellant.

3.       The primary judge imposed a sentence of two years and four months’ imprisonment

from 29 June 2020 to 28 October 2022 with a non-parole period of

one year and two months’ imprisonment, from 29 June 2020 to 28 August 2021. In our

reasons published on 12 March 2021, we announced that the sentence imposed by the primary judge should, in the circumstances, be set aside. The circumstances are set out at some length in those reasons and are repeated at [16] below. They relate to the issue of parity between the sentence imposed upon the appellant and the sentences imposed upon his co-offenders.

4.       The Court wishes to make it clear that the sentence imposed by the primary judge was described as manifestly excessive in the context of the very unusual and particular

circumstances of this case. The fact that the appellant’s appeal against sentence has

been upheld, and the length of the sentence which we will now impose, should not be
seen as a precedent in sentencing offenders for the offence of aggravated burglary.

5.       In assessing the objective seriousness of the offence, the primary judge accepted the

Crown’s characterisation of the offence as a “home invasion”. Whether that

characterisation is appropriate for the offence as we have found to have been committed is moot. The appellant and his co-offenders did not enter the unit as trespassers, but became trespassers when the co-offenders were directed to leave by the leaseholder of the unit, MC. The co-offenders did not leave, and at that point they became trespassers. We were satisfied that at that time there was an agreement in place between the appellant and his co-offenders that they would remain in the unit until their demands were met. Even though the appellant was not present in the lounge room of the unit when MC gave the direction to the co-offenders to leave, he was still party to the agreement which had previously been made that he and the co-offenders would remain in the unit until their demands were met.

6.       The primary judge identified, at [29], multiple circumstances as informing the objective seriousness of the offence. We consider these circumstances to have continuing application:

(a) the offence occurred in the complainants’ home, late at night, and lasted for a

significant period;

(b)	during the incident, the co-offenders committed acts of violence and threatened violence primarily directed at KM, but which impacted on all the occupants of the unit. While the offender did not commit those acts, he was in the unit when they occurred;
(c)	the occupants of the unit were all threatened, if not actually assaulted; and
(d)	the offence was premeditated; it was motivated by desire to recover money owed as a drug debt by KM. MC and the other occupants of the unit were collateral victims in a dispute over the drug debt owed by KM.

7.       The primary judge, at [30], acknowledged the following matters as relevant to assessing the objective seriousness of the role played by the appellant in the offence:

(a)	the appellant spent much of the evening with DX in the second bedroom and was not overtly hostile to him;
(b)	the evidence did not establish beyond reasonable doubt that the appellant brought any weapons into the unit or knew that his co-offenders had brought weapons with them;
(c)	the appellant did not physically assault anyone;
(d)	at one time the appellant stopped one of his co-offenders, Mr Kaddour, from assaulting DX, and at another time when Mr Kaddour was assaulting KM he told

him to “calm down”. The appellant assisted DX in relation to injuries he

sustained by obtaining an ice pack for him;

(e) the appellant apologised to one occupant, TE, saying “I didn’t realise this was

your house”. He had not expected to see the two women at the unit; and

(f) the appellant was probably in the second bedroom with DX when MC told the co-offenders to leave.

1. The primary judge accepted that the offender’s role was significantly less culpable than

   that of his co-offenders. We respectfully agree with that assessment.

9.       We adopt the findings of the primary judge regarding the appellant’s subjective features as set out at paragraphs [32] to [44] of her Honour’s sentencing remarks. These were

not the subject of challenge in this appeal.

10.    For the purpose of re-sentencing, the Court has been provided with a character reference prepared by Georgia Saipani, the sister-in-law of the appellant. She is

married to his younger brother and has known the appellant for 10 years. Ms Saipaini’s

concern is that the sentence imposed upon Mr Saipaini may ultimately result in his removal from Australia to New Zealand as an unlawful non-citizen under the

Migration Act 1958 (Cth). She says that Australia is the appellant’s home and that he

has no connections to New Zealand that will benefit him. She states that the

appellant’s biological mother moved to Australia with the appellant to avoid abuse from the appellant’s biological father. At that time the appellant was very young and his

mother took no steps to obtain Australian citizenship for him. Her mental health subsequently deteriorated and the appellant and his siblings were in and out of foster care homes. Ms Saipani speaks of the appellant as being a strong and supportive uncle to her two children. She describes the appellant as a family man who is close to her husband and her children. Her husband has been teaching the appellant to cut hair so that they can work together. Ms Saipani stated that their family is praying that the appellant can remain in Australia so that they can look after him and help him to be a better man.

11.     We also received a letter from Leu Saipani, the younger brother of the appellant and the husband of Georgia Saipani. Mr Leu Saipani says that he, the appellant and two other brothers moved to Australia in 1998 with their mother to avoid abuse from their biological father. They soon settled with relatives in Canberra and have called it home ever since. Their childhood was difficult because their mother was a single parent with four sons. Their mother subsequently had two further children with another man that Mr Leu Saipani referred to as their stepfather. When that relationship broke down their mother turned to drugs and alcohol and later became mentally ill. The appellant and his brothers were in and out of foster care for a period of between 6 and 10 years. When the appellant was about 15 or 16 years old the family split up, with the younger

children going to Brisbane to live with their mother’s brother, and the appellant

remaining in Canberra and assisting Mr Leu Saipani, who was about 13 or 14 years old at that time. The appellant ensured that Mr Leu Saipani had everything that he needed for school and to play rugby. The appellant became the de facto guardian of Mr Leu Saipani and provided financial support.

12.     Mr Leu Saipani stated that any possible deportation of the appellant would have a direct impact on him as well as his family. He speaks of the appellant as being strongly supportive. He believes that a return to New Zealand would have a negative effect on the appellant as he has no connections in New Zealand, and in particular has no

ongoing relationship with his father. All of the appellant’s supports are in Australia. In
particular, the appellant’s family in Australia is very close.

13.     In brief written submissions provided for the purpose of re-sentencing, Senior Counsel for the appellant referred to efforts made by the appellant to rehabilitate himself in prison, together with the fact that employment is available to him upon his release. Counsel submitted that the Court should re-sentence the appellant to time served.

14.    The respondent also provided brief written submissions for the purpose of

re-sentencing. It submitted that any evidence regarding the possibility of the appellant’s

deportation should not be received as the prospect of deportation was not certain and may be subject to an appeal. The respondent further submitted that the Court cannot craft a sentence to avoid the prospect of deportation.

15.     We accept the submission that this Court cannot craft a sentence with a view to

avoiding the prospect of the appellant’s deportation to New Zealand. As a matter of

general principle, the prospect of deportation following a period of imprisonment may make imprisonment more onerous for a person not facing such a risk. However, the material before this Court does not allow for any meaningful assessment of the risk of deportation to be made whether against the provisions of the Migration Act 1958 (Cth) or otherwise. Even if such an assessment could be made, it could not be used as a basis for reducing the sentence that should otherwise be imposed. This is consistent with the approach taken by this Court in Ngata v The Queen [2020] ACTCA 18.

16.     To give effect to the parity principle it is necessary to have regard to the sentences

imposed upon the appellant’s co-offenders. The principle is to be applied in the unique circumstance of the appellant’s more culpable co-offenders entering guilty pleas to

significantly lesser charges. It is convenient to repeat what we said in our published

reasons of 12 March 2021 at [65] – [68] on that subject:

In the present appeal, the Court has not been invited to examine the exercise of prosecutorial discretion to determine which charges to lay against co-offenders, as in Ivory v The Queen [2014] NSWCCA 181. We accept that it is a matter entirely for the Director of Public Prosecutions to determine what charge or charges will be laid against an individual co- offender. If it is accepted, however, that the parity principle applies where co-offenders are charged with different offences of varying degrees of seriousness arising out of the one incident, it follows that in applying the principle a court must, to some extent, have regard to the relative culpability of the co-offenders as asserted by the Crown in the proceeding in which the principle has application. That is not to say that any difference in the seriousness of the respective charges is to be ignored, simply that the relative culpability of the offenders as asserted by the Crown, or found by the sentencing judge, is a relevant factor in applying the parity principle. Where an offender is convicted of a more serious offence than their co- offenders, this will usually warrant the imposition of a more severe punishment. Consideration of the relative culpability of the offenders as asserted by the Crown or found by the sentencing judge is a factor in determining the extent to which the punishment should be more severe.

The reliance by the Crown on contradictory factual assertions and the laying of charges of varying degrees of seriousness against individual offenders said, in truth, to all be equally involved in the same criminal enterprise may be a forensic necessity in some circumstances, but it is problematic for public confidence in the administration of justice, particularly where the prosecutorial discretion is not the subject of judicial oversight. Courts must ensure that the application of the parity principle is not prescribed by the manner in which the prosecutorial discretion is exercised in such cases. This can be achieved by considering all relevant information, not just the exact charges laid and statements (or findings) of fact upon which courts have previously sentenced co-offenders.

We were satisfied that an objective bystander, cognisant of the matters we have referred to, would feel a justifiable sense of grievance or injustice when confronted with the disparity in sentences imposed upon the appellant and on his co-offenders, even making allowance for the differences in charges and sentencing facts. The appellant was less culpable in this incident than Mr Kaddour or Mr Butkovic. He was not in possession of a weapon and did not engage in physical violence within the unit. He did not make any threats to the occupants.

That is not to say that it was not open to the sentencing judge to impose a sentence higher than that imposed upon the appellant, having due regard to the maximum sentence that may

be imposed for the offence in fact charged. However, to impose only a “slight reduction” on

account of the parity principle was to fail to give effect to the principles to which we have

referred …

17.     Notwithstanding the different charges, it remains necessary to have due regard to the

parity principle so as to avoid a justifiable sense of grievance or injustice to “that

impassive representative of the community, the objective bystander”: Lowe v The

Queen (1984) 154 CLR 606 at 613 per Mason J. In the unique circumstances of the

present case, more than a slight reduction in the appellant’s sentence is required. But

that does not require that the sentences of the appellant and his co-offenders be equated, nor must the Court lose sight of the maximum penalty for the offence with which the appellant was convicted, nor the objective seriousness of his offending.

18.    In our opinion, the appropriate sentence is one of 20 months’ imprisonment

commencing 29 June 2020 and expiring 28 February 2022. We would set a non-parole period of 11 months commencing 29 June 2020 and expiring 28 May 2021.

19.     The formal orders that we make disposing of the present appeal are:

(a)	the appeal against conviction is dismissed;
(b)	the appeal against sentence is upheld, and the sentence imposed by the

primary judge is set aside. The appellant is resentenced to 20 months’

imprisonment commencing 29 June 2020 and expiring 28 February 2022. We set a non-parole period commencing 29 June 2020 and expiring 28 May 2021.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of their Honours Justice Burns, Justice Loukas-Karlsson and Justice Charlesworth.

Associate:

Date: