The Queen v Papalii
[2015] ACTSC 156
•22 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Papalii |
Citation: | [2015] ACTSC 156 |
Hearing Date(s): | 15 December 2014, 17 June 2015 |
DecisionDate: | 22 June 2015 |
Before: | Refshauge J |
Decision: | 1. John Jerome Papalii be convicted of the robbery of $300 from PA Job Pty Ltd on 13 December 2013. 2. John Jerome Papalii be sentenced for that offence to three years imprisonment to commence on 16 June 2015. 3. John Jerome Papalii be convicted of the robbery of $90 from PA Job Pty Ltd on 13 December 2013. 4. John Jerome Papalii be sentenced for that offence to two years and ten months imprisonment to commence on 16 August 2016. 5. John Jerome Papalii be convicted of attempting to rob United Star Supermarkets Ltd on 13 December 2013. 6. John Jerome Papalii be sentenced for that offence to three years imprisonment to commence on 16 June 2017. 7. John Jerome Papalii be convicted of assaulting Constable Macken on 13 December 2013. 8. John Jerome Papalii be sentenced for that offence to three months imprisonment to commence on 16 April 2020, that is to be cumulative as to one month on the third sentence. Had you not pleaded guilty, I would have sentenced you to four months imprisonment. 9. John Jerome Papalii be convicted of the assault of Paul Duncan on 13 December 2013. 10. John Jerome Papalii be sentenced for that offence to six months imprisonment to commence on 16 March 2020. 11. John Jerome Papalii be convicted of resisting Constable Macken in the exercise of his function as a police officer on 13 December 2013. 12. John Jerome Papalii be sentenced for that offence to three months imprisonment to commence on 16 April 2020. 13. The sentence of five years and three months imprisonment be suspended on 22 June 2015 for a period of five years and three months. 14. John Jerome Papalii be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) to be of good behaviour for five years and three months from today with the following conditions: (a) a probation condition that he accept the supervision of the Director-General or her delegate for a period of two years from today or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of that person especially as to counselling or treatment for alcohol abuse and anger management; and (b) a condition that he pay a penalty of $5,040 to the Territory within two years at a rate of not less than $210 per month. 15. John Jerome Papalii pay compensation in the sum of $390 to the Registrar of the Supreme Court within 28 days for payment out to PA Job Pty Ltd. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Practice and procedure – Sentencing – Robbery – Attempted Robbery – Assault – Resisting a public official in the exercise of his functions – Offences carried out incompetently – Delay in preferring remaining charges – Offender undergoing counselling – Rehabilitation – Remorse – Totality |
Legislation Cited: | Crimes Act 1900 (ACT), s 26 Crimes (Sentence Administration) Act 2005 (ACT |
Cases Cited: | Clarkson v The Queen (2011) 32 VR 361 DBW v The Queen [2007] NSWCCA 236 |
Parties: | The Queen (Crown) John Jerome Papalii (Defendant) |
Representation: | Counsel Ms K McKenzie (Crown), 15 December 2014 Ms M Jones (Crown) 17 June 2015 Mr F J Purnell SC (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant) | |
File Number(s): | SCC 109 of 2014 SCC 152 of 2014 |
Refshauge J:
Serious offences must be treated seriously by the courts but the principles of sentencing require the court to have regard to the precise circumstances under which any offence is committed and the personal circumstances of the offender.
In this case, John Jerome Papalii committed two very serious offences and attempted to commit a third very serious offence in December 2013, the attempt to do so being an offence in itself. He has pleaded guilty to two counts of robbery and one count of attempted robbery.
Robbery is an offence contrary to s 309 of the Criminal Code 2002 (ACT), the maximum penalty for which is a fine of 1,400 penalty units (at the time, a fine of $196,000) and fourteen years imprisonment. As the High Court said in Muldrock v The Queen (2011) 244 CLR 120 at 133; [31], “The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence.” By this yardstick, the offence of robbery is a very serious offence.
By s 44 of the Criminal Code, the attempt to commit an offence is punishable as if the offence attempted had been committed. Thus, the offence of attempted robbery is punishable by 1,400 penalty units (that is a fine of $196,000) and fourteen years imprisonment, also a serious offence.
The facts
At about noon on 13 December 2013, Mr Papalii was driven to a suburban supermarket by a friend. He was wearing a shirt with “WADE” written across the front and a hooded top which, although over his head, exposed his face.
Mr Papalii entered the store and spoke to an employee who was stocking the shelves. He asked the employee for $100 and, when the employee said, “I don’t have any money”, he said, “If you work here can you give me $200 from that till? I don’t want to hurt you but I have got a gun with me”. He pointed towards the right hand side of his pants where there was a bulge apparently consistent with a gun in his pocket. The employee removed four $50 notes from the till and Mr Papalii asked, again, “Give me another $100. I don’t want to hurt you”. The employee gave him the further five $20 notes.
Mr Papalii then walked out of the store and made a telephone call to his friend who then arrived and collected him.
Later the same day at about 5:00 pm, Mr Papalii returned to the same supermarket wearing the same clothes, including the shirt with “WADE” written on it, but, on this occasion, he was not wearing the hooded top but merely a cap. His face was clearly exposed.
He went up to another employee in the shop and asked whether he was working with anyone else. When told that there was another employee, but that she was outside having a cigarette, he said, “I want to get straight to the point and don’t want to cause a scene, just hand over the money from the till”.
The employee felt threatened and opened the till, removing all the notes from the register and handing them to Mr Papalii who placed them into his pocket and left the store.
Initially, I was concerned that, for the second offence, these facts did not constitute robbery, which requires that the offender commits theft and, when doing so, immediately before or immediately after, either uses force on someone or threatens to use force then and there on someone with the intent to commit the theft or escape from the scene.
Viewed literally from the words said, it is difficult to find a threat of violence in them.
It was pointed out, as I could see, that Mr Papalii is a big man and it was submitted that I can infer from the circumstances, including Mr Papalii’s size and what was said to be the tone of his voice, and the fact that the employee felt threatened that the approach of Mr Papalii was, in itself, threatening.
This is consistent with the decision of Walker J in the Supreme Court of British Columbia in R v Nilsson [2011] BCSC 1654 where his Honour said (at [29]):
A threat or threats of violence may be inferred or implied in the circumstances. A threat of violence may be made by words, gesture, or by implication from the circumstances in which the offence occurred. For a threat of violence to be implied, there must be evidence to support a finding that an ordinary reasonable person would have felt a threat of violence conveyed in all the circumstances ... a demand for money at a bank directly to a teller without a withdrawal slip or other appropriate banking document is one such factor. Conduct designed to instil a sense of fear in the recipient and to ensure compliance with the demand is another (see also R v Katrensky [1975] 24 CCC (2d) 350 and R v Taplin (1780) 2 East PC 712).
Particularly in the light of the concession of the accused, represented by very experienced and distinguished senior counsel, Mr F J Purnell SC, that there was an implied threat, I accepted the plea. Of course, had I any doubts, the consent of the accused constituted by his plea of guilty would not satisfy me were there to be no offence disclosed on the facts.
Finally, at about 7.00pm on the same day, Mr Papalii went to another supermarket in a suburban shopping centre. He was dressed differently but had on a dark coloured hooded jumper with the hood covering his head but again with his face exposed. He asked for an item to purchase and the employee told him where he could find it. He picked up the item and placed it on a counter and the employee asked for $3. Mr Papalii asked whether the employee was working on his own tonight and was told that there was someone else there. Mr Papalii then said he would come back with some coins.
About five minutes later he returned and said, “... I will be honest with you I want $200. Give it to me”. He then reiterated the demand and told the employee that he had a gun but the employee removed a baseball bat from behind the counter and told Mr Papalii to leave the shop or he would call the police. Mr Papalii began walking out of the store but the employee jumped over the counter and Mr Papalii ran from the store.
A man was sitting outside the store smoking a cigarette and when he witnessed Mr Papalii run away he spoke to the employee who told him what had happened. The man took the baseball bat, got into his car and drove to where he had seen Mr Papalii run off. He caught up with him and told him that the police were coming, suggesting that he should stop.
Mr Papalii moved to the driver’s window of the man’s car and punched the man on the right side of his face, causing him pain around his right eye. Mr Papalii then ran off and the man drove back to the shop.
Police arrived shortly after. A number of civilians saw Mr Papalii hiding in the backyards of residences and jumping fences between them. At about 7:50pm, Constable Ian Macken saw Mr Papalii hiding in the backyard of a residence and approached him saying, “Stop, stop police”. Mr Papalii ran towards Constable Macken, pushing him out of the way. Constable Macken attempted to restrain Mr Papalii but was overpowered and a struggle ensued during which Mr Papalii threw Constable Macken to the ground causing an injury to Constable Macken’s arm and some thorns to imbed in his back.
Later two police officers followed Mr Papalii, blocking his attempted escape and, after a brief struggle, placed him under arrest.
Mr Papalii remained in custody from the time of his arrest until granted bail on 19 December 2013, a total of six days.
Subjective circumstances
I had a Forensic Mental Health Assessment from Professor James Ogloff, from whom I heard oral evidence and various references. Mr Papalii’s partner and a friend of Mr Papalii also gave oral evidence. From this material, I make the following findings.
Mr Papalii was born twenty-one years ago in Auckland, New Zealand, to where his parents had moved from Samoa. He has an older brother and two younger sisters.
As a result of tension between his mother and his father, caused by his father’s excessive drinking and an extramarital affair, Mr Papalii’s mother relocated to Brisbane where she and the boys lived with her brother and his family.
Mr Papalii’s early memories of life were very negative. The family were very poor in Auckland not even having electricity in the house. In Brisbane, he missed his father terribly, not seeing him for about two years. Nevertheless, his time in Brisbane was more positive, his uncle had seven children so it was a busy house and he has become very close to his cousins.
Eventually, his parents reconciled and Mr Papalii’s father joined the family in Brisbane.
Apart from the difficulties already mentioned, Mr Papalii seems to have had a relatively straightforward childhood. He completed Year 12 at a State high school in Brisbane. He found the high school environment quite tough with a lot of fighting and other anti-social behaviour and admitted that he got into some trouble at school, through relatively low grade behaviour. He was, however, suspended from school on one occasion. He made many friends and still sees some of them, though that is difficult since his move to Canberra.
Mr Papalii began to play rugby when he was about eleven years old. Rugby has proved to be a very important element in his life. Despite the financial and other difficulties he experienced growing up, rugby was an area in which he could excel and find his identity. He continued playing rugby throughout school and has continued up to the present. He found the rugby teams formed an important part of his “family unit” and he displayed a high degree of pride in his ability and successes.
Professor James Ogloff, Director of the Centre for Forensic Behavioural Science at the Swinburne University of Technology and Forensicare, considered that his identity was very much imbedded in his rugby playing, which provided an opportunity not only for a physical outlet but, more importantly, to develop connections with others who shared common interests.
His elder brother became a professional rugby player and clearly became something of a role model for Mr Papalii.
The financial success of the rugby playing of the two brothers meant that they essentially became responsible for the financial support of the family and, indeed, the family moved to Canberra to a house being purchased by Mr Papalii and his brother.
Mr Papalii was recruited to play for the Canberra Raiders while still at school. He waited until after school, however, and it was when he then moved to Canberra that he commenced his rugby career. He completed a two year contract and was given a second one year contract but a new coach was hired during this time and Mr Papalii felt they did not get on. He said that, in his view, the coach, “[d]idn’t really like [him]”. In about mid 2013 the coach told Mr Papalii that he needed to have a break. After the break Mr Papalii was to commence training. He failed to attend the training schedule one morning and, although he did attend in the afternoon, the coach decided to sack him for his failure.
This termination of his contract had a significantly detrimental impact upon Mr Papalii. Although he had been a consumer of large amounts of alcohol before this time, his binge drinking became more frequent.
As described to Professor Ogloff, his membership of the team provided almost all his social support: his income, health care, financial advice, his club camaraderie and support. He did not have private medical care and did not even have a regular general practitioner in the community, relying instead on the club doctors for all his health care needs. Thus, there was no relationship to turn to for professional help.
As a result, he struggled considerably but eventually sought and obtained other work, delivering linen to hotels and restaurants around Canberra.
Mr Papalii has had a number of girlfriends but has been in a long-term relationship with a young lady for more than a year. He described the relationship particularly positively and said that his partner has been a very positive influence on him.
His partner gave some evidence on the first hearing before me. She said that, at the time she gave evidence, she had known Mr Papalii for about two years and they had been in a relationship for about eighteen months. She described graphically the devastating influence that his dismissal from the Raiders club had had on him. She said his performance levels started to drop and he stopped doing a lot of the things that he previously had wanted to do, like healthy eating and mixing with his mates. He also often became angry over small things. He started to doubt himself, classifying himself as a failure. He also started to drink alcohol when by himself. He had up and down moods; at times he was happy and then he would be angry; at times he would be really upset and sad needing much comfort.
It also affected their relationship as he became more dependent.
Nevertheless, their relationship remained very close and, particularly after he was granted bail, he made real efforts to change and make a better future for himself. He and his partner started to do things together that they did not do before. In particular, he has returned to playing rugby and has become very involved with the United Nesian Movement, a non-profit organisation aimed at creating an environment with strong Nesian (Pacific Island) role models to help develop young Nesian youth to be “better people”, particularly through learning and practicing their cultural heritage wherever they choose to pursue their career. She explained that the Movement had provided dancing for a number of events including fundraising for a hospital in Tonga; Mr Papalii is the drummer and sings for the group.
Professor Ogloff reported that Mr Papalii had a good work ethic, obtaining employment while at high school despite the demands of training and rugby playing. His income went to support the family, but he did that without resentment. Apart from the few months following his dismissal from the Canberra Raiders, he has remained in employment all his adult life.
I note that he had returned to playing rugby and has commenced playing with the West Belconnen Warriors. His coach there provided an impressive reference noting that he is a very popular member of the club and that he has been working “harder on his discipline to training with each week that goes by”. He has a good relationship with all the players and actively engages with them in social settings. His coach expressed his respect for Mr Papalii through his “courtesy, discipline, respectfulness and ability to back up his word of becoming a committed part of our club”.
It appears that he also plays for the Gungahlin Bulls Rugby League Football Club and the president wrote a reference for him also about the two years involvement Mr Papalii has had with the club. The reference spoke of “the respect he has earned from his playing peers” and the “high regard” with which he is held within the playing group. It was said he had “demonstrated the maturity expected of any senior player” and that he had “been a role model to our younger players”. He is well respected and, while playing rugby “hard and tough”, does not extend this to “foul play”.
Mr Papalii has also re-connected with his church, where he has become a significant volunteer. In particular, he has been involved with an Outreach Program which provides ministry to the community. He has taken charge of transporting refreshments for the program, helping to set up, and assist in, the kitchen. He also helps packing up equipment and church furniture after each event.
The Director of the Program described him as “courteous and polite ... always willing to give a helping hand”. Although initially described as “intimidating to some”, he soon became, the Director said, “very charming, light-hearted ... with a good sense of humour”. He is described as honest, helpful, committed, loyal, caring, ambitious and always willing to show respect and love.
The President of the United Nesian Movement described him as “an outstanding ambassador” for the Movement.
I had, in all, ten references from people who attested to his good character. They all said that he showed considerable remorse and regret at the offences he has committed or that they were out of character or both. His employer said that he was able to trust him and that he would always be happy to employ him.
Mr Papalii had written letters to the businesses that he had robbed and attempted to rob and expressed his apology to the employees who were victims of his crimes. He said that he proposed to repay the amount stolen. It has not yet been paid and I shall direct that it be repaid.
They appeared to me to be genuine letters of apology and expressed the remorse which other witnesses had identified in him.
Mental Health
I had an initial report from Mr Gary Faumui of the Booyah Group who had been working with Mr Papalii since July 2014. It seems his particular focus was on assisting Mr Papalii with anger management and emotional control. He reported weekly counselling sessions. He also has been providing counselling for drug and alcohol abuse.
I have referred earlier to the clinical and forensic psychological assessment provided by Professor Ogloff and his oral evidence. He reported that during his clinical interview, Mr Papalii readily admitted to the offences but said he could still not explain why he had ended up offending as he did. He stated that his behaviour was totally out of character. Professor Ogloff opined that Mr Papalii did not have a history of mental illness or emotional problems prior to his dismissal from the Canberra Raiders in mid 2013.
Professor Ogloff put particular emphasis on the self-identity that playing rugby had provided to Mr Papalii and how the dismissal from the Canberra Raiders fundamentally affected his daily life and self-concept in addition to embarrassment, shock and immediate lack of income. He accepted some responsibility for not attending practice punctually and missing the training session. He was, Professor Ogloff reported, “lost” for a long period after the dismissal so that, by the time the offending occurred he had “essentially hit the bottom”. Professor Ogloff opined that underlying psychological factors were a driving force so that, but for the dismissal, he would not have engaged in the offences. His opinion was that “Mr Papalii’s mental state at the time of the offences, and particularly what appears to be depressive symptomology and post-traumatic stress symptomology, was diminished at the time of the offending and contributed significantly to the commission of the offences.” His opinion was that he found no evidence of secondary gain in his account of his mental state when describing how the incidents occurred.
Professor Ogloff reported, too, that Mr Papalii’s mental state has improved significantly since the offences occurred. He has maintained gainful employment and plays rugby on a fee-for-game basis, has a stable relationship with his partner and continues to receive the support of his family. While at the time of assessment he had what was described as a “lowered level of mood”, he did not meet the criteria for diagnosis of any major mental illness. Instead, Professor Ogloff reported “a degree of resolve to continue to rebuild his rugby career”.
When discussing the possibility that Mr Papalii may never be able to return to playing rugby at the elite level, Professor Ogloff reported that Mr Papalii had stated that, while this would be clearly disappointing, he had been able to cope with the loss of playing rugby at the elite level much better in the past year than in the several few months following his dismissal. Thus, Professor Ogloff was of the opinion that it was unlikely that Mr Papalii would deteriorate in the way he did in the past if he was ultimately unable to rebuild his career playing rugby at the elite level. His assessment was that he presented a low risk of re-offending, noting that fewer than one out of twenty offenders with an LS/RNR score equivalent to that of Mr Papalii’s returned to prison in the future.
Professor Ogloff also considered that, from a psychological perspective, Mr Papalii may well deteriorate psychologically if he were to be imprisoned. He noted that it was unfortunate that Mr Papalii did not receive professional care for the stress and loss he experienced following his dismissal, probably an inevitability from the termination of all supports that had been provided to him and which he lost on dismissal. It was, however, important that he continued to obtain treatment and abstain from or control his use of alcohol and other drugs.
The offence
Robbery is usually associated with its aggravated form of the offence, termed in other jurisdictions “armed robbery”. As I indicated above (at [3]), the maximum penalty makes it clear that it is a serious offence, although the aggravated form is much more serious with a maximum penalty of 2,500 penalty units (that is a maximum fine of $350,000) and imprisonment for twenty-five years.
Nevertheless, most of the elements of robbery and aggravated robbery are the same; the element of aggravation is where a weapon is used or the offence is committed in company. Accordingly, some indication of the nature of the offence can be gained from consideration of the factors that the courts have found relevant in determining the seriousness of the more serious offence. For example, the relevant factors set out in R v Henry (1999) 46 NSWLR 346 at 380; [162] and 381; [170] are, for the most part, features that would be applicable to the offence of robbery as well as the offence of aggravated robbery, though, of course, possession of a weapon, one of the factors, is not relevant.
Guideline Judgments of the Court of Criminal Appeal of New South Wales do not, as Higgins CJ pointed out in Scott v Wynants (2009) 4 ACTLR 13 at 18; [35], bind this Court, though the reasoning may be application. In any event, the guideline in R v Henry is for a different offence and so cannot be made directly applicable. It is, thus, of no assistance other than in identifying factors that may be relevant when determining the seriousness of the offence.
By reference to the other factors referred to in R v Henry, this was an offence generally of a common occurrence, but, it seems to me, somewhere at the lower end of the spectrum of seriousness. Thus, the amount obtained in each robbery was a relatively small amount, though it does not appear that any was recovered. The robbery was obviously not planned and certainly not a careful, deliberate and professional execution of the robbery. Indeed, Mr Papalii made no attempt to cover his face or his identity and, indeed, wore a shirt in the two robberies that made his identification not difficult. He returned to the same store with his face even more exposed on the second occasion.
The robberies were not of banks or similar financial institutions, though it does appear that supermarkets are a relatively common target. There was nothing about the circumstances that was particularly vulnerable (such as are service stations at night) though, in each case, there was only one employee actually on the premises. In two cases, however, other employees were on shift though not clearly present.
No actual force was used to effect the theft although a weapon was suggested in two cases.
The offences were carried out relatively incompetently. This may make relevant the comment of the Victorian Court of Criminal Appeal in R v Fiorenti (Unreported, Victorian Court of Criminal Appeal, Young CJ, Anderson and Jenkinson JJ, 29 August 1979) that:
[h]is incompetence does not palliate his offence, but it tends to confirm the impression which other circumstances suggest that he might be reclaimed from his criminal courses if he were withdrawn from criminal associations.
That there were three offences is an aggravating feature, but, as I have noted, the way in which he attended to commit at least the second offence was bound to encourage detection.
In all, I consider that the offences were less serious versions of what is, nevertheless, a very serious offence.
Transferred charges
I was also asked to deal with three other offences arising out of the incidents from which the charges of robbery and attempted robbery occurred. These are summary offences which, ordinarily, could not be dealt with in the Court. They have been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT).
Under s 68D of the Supreme Court Act 1933 (ACT), however, I am able in certain circumstances to deal with them. I have referred in R v Barker [2014] ACTSC 374 at [76]-[89] to this provision and how I am to approach it.
The summary offences arise out of the events that occurred when Mr Papalii left the second supermarket and was chased by the by-stander and his interaction with Constable Macken.
Thus, the offences include two offences of common assault, being the assaults on the by-stander and on Constable Macken. Assault is an offence against s 26 of the Crimes Act 1900 (ACT), attracting a maximum penalty of two years imprisonment.
The third offence is of resisting a public official in the exercise of his functions, knowing he is such an official. This offence, contrary to s 361(1) of the Criminal Code attracts a maximum penalty of 200 penalty units (that is a fine of $28,000) imprisonment for two years.
The facts are set out above (at [17]-[20]). Mr Papalii has pleaded guilty to these charges.
I had no particular information on the effects of the assaults. While more than mere contact (McElholum v Hughes [2015] ACTSC 78 at [297]), it did not seem to me that the assault on Constable Macken was a serious assault, though it is always serious to assault a police officer.
As to the assault on the bystander, this was a punch to a citizen merely doing his duty to assist police to identify and, if necessary, to arrest an offender. It was a more serious assault.
Finally, the charge of resisting arrest was not the most serious and the elements of that offence and the actions constituting it overlap very significantly with the assault offence.
Victim Impact Statements
I had no Victim Impact Statements. The court, of course, will know generally the effect of crimes on victims, some of which can be presumed, as pointed out in Clarkson v The Queen (2011) 32 VR 361 at 371; [33]; DBW v The Queen [2007] NSWCCA 236 at [39]. It has been said that judges know of the significant impact that offences of armed robbery have on its victims: R v Henry at 368; [97].
As the court noted in R v Henry at 368; [95], the actual impact of an offence on a victim will vary and cause a variation in sentence. The precise effect of a crime on a particular victim is a matter of fact that must ordinarily be proved either by a Victim Impact Statement (s 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT)) or by evidence adduced in the usual way (R v Dixon-Jenkins (1991) 55 A Crim R 308 at 316). On the other hand, it is open to a judge to have regard to the fact that the offence has caused no serious harm: R v Webb [1971] VR 147 at 150-1. There was, in this case, no such evidence.
So far as the victim of the first offence is concerned, I accept that he would have been afraid, though the precise extent of this is unclear; the reference to a gun would clearly have been frightening. As to the victim of the second offence, there was no similar threat of a gun, but here the Statement of Facts expressly says the victim felt threatened. That, however, is unlikely to have been as severe as for the victim of the first offence. As to the victim of the third offence, he, too, was faced with a reference to a gun but he picked up a baseball bat and chased Mr Papalii out of the shop. I do not think he would have experienced as much fear as the victim of the first offence. There was no evidence of any particular long term effects on any of the victims.
Course of proceedings
Mr Papalii was arrested on 13 December 2013 and charged with the first offence of aggravated robbery, the attempted robbery and the assault on Constable Macken. He was remanded in custody. He was later granted bail on 19 December 2013, having spent 6 days in custody.
On 21 January 2014, he was further charged with resisting arrest and pleaded not guilty to all the charges then preferred.
For reasons not clear to me, the remaining charges were not preferred until 3 April 2014. No plea was then entered but, on 22 May 2014, Mr Papalii entered pleas of guilty to all matters and the two counts of robbery and the count of attempted robbery were committed for sentence to this Court. The other matters were then transferred to this Court as I have explained earlier.
When the matter came before me on 15 December 2014, I heard the Crown case and the case for Mr Papalii involving the oral evidence of Mr Papalii’s partner, Mr Papalii’s friend and Professor Ogloff and the tendered reports and references.
I was then asked to adjourn the proceedings for 6 months to permit the counselling being undertaken by Mr Papalii to continue and to give him an opportunity to address the issues which had led him to commit the offences, though I did not make a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act 2005 (ACT). It may be that I made, in effect, a Griffiths Bond (see Griffiths v The Queen (1977) 137 CLR 293 at 304-5), but I gave no indication to Mr Papalii of what was required of him, save as to conditions of bail, nor as to what sentence may be imposed.
As a result of the adjournment, I had a Pre-Sentence Report and a report from the Court Alcohol and Drug Assessment Service (CADAS) as ordered. They confirmed many of the matters relating to Mr Papalii’s subjective circumstances to which I have referred above (at [23]-[55]).
As to the situation consequent upon the Griffiths Bond, the Pre-Sentence Report stated that Mr Papalii was still in a positive relationship with his partner. He is reported to have undertaken one-to-one counselling but that had not been verified by the author of the Report. I had, however, oral evidence of that to which I refer below (at [86]).
There was a worrying reference to the facts which might be said to have controverted the plea. This was explained to me and I accept that it did not do so.
The author of the Pre-Sentence Report commented that Mr Papalii had demonstrated some stability in the adjourned period. He was assessed as at a low risk of re-offending. It suggested, but it was not entirely clear on what basis, that if Mr Papalii were to undertake further interventions in relation to alcohol use, the risk of re-offending may be reduced.
I heard additional oral evidence when the matter returned to Court. Mr Garry Faumui gave evidence of the counselling he had provided to Mr Papalii during the six month period on a one-to-one basis.
He said that he had noticed a change in Mr Papalii and considered that he had made significant progress in addressing his mental health challenges.
He confirmed Mr Papalii’s work with the United Nesian Movement. He also pointed to the significantly positive effect that Mr Papalii’s partner, Ronise Niko, was having on him.
Mr Faumui described Mr Papalii’s remorse and insight into the effect his actions had likely had on the victims of his offences. Mr Papalii mentioned to him the fear that a victim would have being confronted by a robber who says he had a gun and the ongoing effects that this would have.
Mr Faumui also confirmed the opinion of Professor Ogloff that the offences were directly linked to the circumstances of Mr Papalii losing his contract with the Raiders, particularly as rugby had played such a significant part in his life.
I also had a report from Mr Faumui which confirmed these matters. Mr Papalii had continued to receive counselling for his alcohol use and for anger management. He participates positively and had made significant progress.
Mr Faumui felt that he was keen to put this part of his life behind him, but in the context of having gained an understanding of himself, his past, his family, his culture and his future.
I also heard from Mr Papalii’s partner, Ms Niko that they were now in a strong relationship which she thought would develop into marriage and building a family.
She recounted how Mr Papalii had travelled to Samoa for 4 weeks in December 2014 where he helped members of his family in the village there, in particular in building a church.
She confirmed that he was attending counselling and she had noticed a definite change in his attitude which was more positive and had given him a clearer picture of what he wanted in the future.
Ms Niko said that Mr Papalii wanted to pursue his rugby career but was realistic about the challenge that these offences would cause to that ambition. He continued to play at the moment and had made inquiries which seemed to show that, when the current charges were resolved, he may be able to find contracted playing with an interstate feeder club.
In particular, she said that Mr Papalii was no longer drinking alcohol. He can be present when others are drinking but he generally just leaves and returns to her and his family.
She said that he was employed as a concreter, working long hours, five or six days a week from 6:30am to 5:00pm or up to 7:00pm, depending on the size of the job. He attended training after that each Tuesday and Thursday and she went to the gym with him each Monday, Wednesday and Friday after work.
She confirmed that he was still involved in the cultural activities to which I have earlier referred (at [40]) and the Outreach Program for his church to which I have also referred (at [44]-[45]) as well as mentoring young people, helping with their homework and their sport.
She said that he was no longer drinking and that they had improved their communication with each other, being more honest and that this had been very positive for both of them.
She explained that, as she understood it from the conversations she had had with him, Mr Papalii had committed the offences because, having lost his contract with the Canberra Raiders, he needed the money, especially as, it appears, other people were still depending on him.
The CADAS Report described Mr Papalii as “a softly spoken, genuine man who appears to have turned his life around”. He frankly acknowledged to the Report’s author that his prior use of alcohol was “pretty bad”. The Report further stated that “Mr Papalii presented as well into his recovery and agreed that he will continue to see Mr Feumui [sic] on an ongoing basis”.
Consideration
I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT), although it seems to me that, in the circumstances, specific deterrence plays little part and rehabilitation is significant. Significant regard, obviously, must be had to general deterrence and denunciation but, in the particular circumstances of this case, they do not seem to me to be overwhelming.
This is because, in the first place, there was a clear link between the commission of the offences and Mr Papalii’s mental condition that appears to require me to apply the principles in R v Verdins (2007) 16 VR 269 at 276; [32], namely, the first and third ways mental functioning there identified is relevant to sentencing, that is:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
...
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
In the second place, his rehabilitation has been very successful to date with no obvious likelihood that it will not continue and, indeed, endure.
I have regard to the matters of which I am aware set out in s 33(1) of the Crimes (Sentencing) Act and which I have set out above.
I note that I have not been provided with particular material in relation to current sentencing practice. It is clear that ordinarily offences of robbery will entail an immediate custodial sentence and there must be exceptional circumstances before any other sentence is imposed.
I take into account the plea of guilty entered by Mr Papalii in the Magistrates Court at an early stage, although I do note that it was entered after a number of appearances after a plea of not guilty.
I note that Mr Papalii has no significant prior record. In 2011 he was found guilty of an offence of common assault but no conviction was recorded and he was fined $200. Even though it is an offence of violence, the attitude of the Court, shown by the sentence imposed, enables me to find that it is of no relevance to the sentence I need to impose.
I take into account Mr Papalii’s age. While he is over 18 years, he is still relatively young and, in the opinion of Professor Ogloff, he appears to be similar to a number of athletes that Professor Ogloff had seen with an emotional immaturity because of the rather protected existence that elite athletes often experience. Youth, especially immaturity, is a matter to be taken into account as noted in Gordon (1994) 71 A Crim R 459 at 469.
I take into account the seriousness of the offences as I have earlier described them (at [56]-[64]). The incompetent way they were committed confirms the likelihood that Mr Papalii’s proved rehabilitation will be enduring.
I take into account the effect of the offences on the victims, though this is limited to what the court can assume for there was no precise evidence on which to rely.
I take into account the letters of apology written by Mr Papalii which I assume that the Director of Public Prosecutions, to whom they were sent, will have passed them on to the victims. He has agreed to pay compensation for which I will make an appropriate order.
I accept that Mr Papalii is remorseful and I consider that it is very unlikely that he will re-offend.
Mr Papalii has been assessed as suitable for periodic detention and for a community service work condition for a Good Behaviour Order.
In my view, a sentence of imprisonment is inevitable as was agreed by both counsel, but the question is how it is to be served. Mr Purnell, submitted that the sentence of imprisonment should be suspended. Ms M Jones for the Crown did not submit that suspension of the sentence would constitute an appellable error.
As there are multiple offences, I have, also, to consider the question of cumulation and concurrency.
I have carefully considered the length of each of the sentences to ensure that, when there are overlapping common elements between any of the offences, Mr Papalii is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. For example, all the offences were committed on the one day. While not quite part of the same enterprise so as to attract what has been called the “one transaction rule” (R v Hally [1965] Qd R 582 at 584), it has been pointed out that repetitious behaviour over a confined span of time, may be sufficient to permit the presumption of concurrency to continue: Director of Public Prosecutions v Grabovac [1998] 1 VR 664. On the other hand, I must be careful to note that, as pointed out in R v Harris [2007] NSWCCA 130 at [46], an offender’s criminality is greater by reason of committing more offences rather than fewer and that the impression should not be left that an offender is not being effectively punished for offences beyond the first in a series.
I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, that the total sentence is not excessive. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
It does seem to me, however, that this is one of those truly exceptional cases where a period of full-time custody is not required.
Mr Papalii, please stand:
I convict you of the robbery of $300 from PA Job Pty Ltd on 13 December 2013.
I sentence you to three years imprisonment to commence on 16 June 2015 to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to four years imprisonment.
I convict you of the robbery of $90 from PA Job Pty Ltd on 13 December 2013.
I sentence you to two years and ten months imprisonment to commence on 16 August 2016, that is to be cumulative as to twelve months on the first sentence. Had you not pleaded guilty, I would have sentenced you to three years and six months imprisonment.
I convict you of attempting to rob United Star Supermarkets Ltd on 13 December 2013.
I sentence you to three years imprisonment to commence on 16 June 2017, that is to be cumulative as to one year on the second sentence. Had you not pleaded guilty, I would have sentenced you to four years imprisonment.
I convict you of assaulting Constable Macken on 13 December 2013.
I sentence you to three months imprisonment to commence on 16 April 2020, that is to be cumulative as to one month on the third sentence. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of the assault of Paul Duncan on 13 December 2013.
I sentence you to six months imprisonment to commence on 16 March 2020, that is to be cumulative as to two months on the fourth sentence. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of resisting Constable Macken in the exercise of his function as a police officer on 13 December 2013.
I sentence you to three months imprisonment to commence on 16 April 2020, that is to be wholly concurrent with the fourth sentence. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
That is a sentence of five years and three months. Had you not pleaded guilty, I would have sentenced you to six years and six months imprisonment.
I suspend that sentence today for a period of five years and three months.
I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) to be of good behaviour for five years and three months from today with the following conditions:
(c) a probation condition that you accept the supervision of the Director-General or her delegate for a period of two years from today or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of that person especially as to counselling or treatment for alcohol abuse and anger management; and
(d) a condition that you pay a penalty of $5,040 to the Territory within two years at a rate of not less than $210 per month.
I order that Mr Papalii pay compensation in the sum of $390 to the Registrar of the Supreme Court within 28 days for payment out to PA Job Pty Ltd.
[His Honour then spoke directly to Mr Papalii]
Mr Papalii, those are the formal orders that I have made. I need to explain them to you so that you understand clearly what I have sentenced you to, although no doubt your counsel will do that.
In summary, I have said that the offences you committed on 13 December were worth, because of your plea of guilty, five years and three months in gaol. I do not require you to spend any more than the six days you have already spent in gaol because I am satisfied of the circumstances under which that offending was committed and of the efforts that you have now made towards rehabilitation. That rehabilitation is, in my view, ongoing and will assist to protect the community and, I hope, protect you and allow you to regain some self-esteem and some ability to pursue your sport and other interests.
I have suspended the term of imprisonment and made a Good Behaviour Order. That order requires that you undertake not to commit any further offences within the next five years and three months that are punishable by imprisonment. If you do commit such offences, you can be brought back before the Court and re-sentenced and that resentencing includes the possibility of being sent to gaol.
There are two conditions attached to the Good Behaviour Order. One is a probation condition which requires that you are under the supervision of an officer of ACT Corrective Services. There are two aspects to that. One is control, to make sure that you keep on the straight and narrow because this is a risky time. You have now got the relief of knowing that you are not going to go to gaol but make sure that you stay with your counselling with Mr Famui, which is going so well. There will also be someone there so that if things do get tough, and it is not always going to be easy out there, there is someone who is independent and objective who you can share those problems with, from whom you can seek some assistance and who has knowledge of places and agencies that can assist you
The second condition is that you are required to repay something to the community. In the circumstances, I have imposed a fine in effect of $5,040 which you should pay in two years and, if you pay $210 a month, which I have required you to do, then it will be paid off. If you miss a payment, then that is a breach of the Good Behaviour Order and you can be brought back before the Court and dealt with again.
Finally, you are required to pay the victim, the supermarkets, the money that you stole from them, that is the $390, which you are to pay to the Registrar in 28 days.
| I certify that the preceding one hundred and forty-four [144] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge Associate: Date: 6 July 2015 |
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