Tuifua v Regina; Lee v Regina; Niuqila v Regina
[2008] NSWCCA 224
•26 September 2008
Reported Decision: 189 A Crim R 1
New South Wales
Court of Criminal Appeal
CITATION: Tuifua v Regina; Lee v Regina; Niuqila v Regina [2008] NSWCCA 224
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 26 June 2008
JUDGMENT DATE:
26 September 2008JUDGMENT OF: Beazley JA at 1; Grove J at 55; Hidden J at 56 DECISION: In respect of each applicant:
1. Grant leave to appeal against sentence;
2. Appeal allowed and sentences imposed by Norrish DCJ in the District Court be quashed;
3. In lieu thereof, the following sentences are imposed:
Tuifua
A non-parole period of 3 years 3 months commencing on 1 July 2005 and expiring on 30 September 2008, with a balance of term of 2 years 6 months, expiring on 30 March 2011. The earliest date upon which the applicant Tuifua may be released on parole is 30 September 2008.
Lee
A non-parole period of 3 years 2 months commencing on 1 January 2006 and expiring on 28 February 2009, with a balance of term of 2 years 7 months, expiring on 30 September 2011. The earliest date upon which the applicant Lee may be released on parole is 28 February 2009.
Niuqila
A non-parole period of 4 years commencing on 1 January 2006 and expiring on 31 December 2009, with a balance of term of 2 years, expiring on 31 December 2011. The earliest date upon which the applicant Niuqila may be released on parole is 31 December 2009.CATCHWORDS: CRIMINAL LAW - sentencing - co-offenders – parity - disparity between sentences - justifiable sense of grievance - interference by appellate court LEGISLATION CITED: Crimes Act 1900, s 97(1)
Criminal Procedure Act 1986, s 166CATEGORY: Principal judgment CASES CITED: Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
Qing An v Regina [2007] NSWCCA 53
R v Bloomfield (1998) 44 NSWLR 734; (1998) 101 A Crim R 404
R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300
R v Diamond (NSWCCA, Hunt CJ at CL, Smart and James JJ, 18 February 1993, unreported)
R v Draper (NSWCCA, Street CJ, Hunt and Wood JJ, 12 December 1986, unreported)
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149
R v Hoar [1981] HCA 67; (1981) 148 CLR 32
R v Salcedo [2004] NSWCCA 430
R v VAA [2006] NSWCCA 44
Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58PARTIES: George TUIFUA; Robert LEE; Acura NIUQILA (Appellants)
Regina (Respondent)FILE NUMBER(S): CCA 2007/2803; 2007/2804; 2007/2805 COUNSEL: A Francis (Tuifua)
E Ozen (Lee)
C Loukas (Niuqila)
P Ingram (Respondent)SOLICITORS: Watsons Solicitors and Barristers (Tuifua)
Nyman Gibson & Stewart (Lee)
Legal Aid Commission (Niuqila)
Solicitor for Public Prosecutions (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0530 LOWER COURT JUDICIAL OFFICER: Norrish DCJ LOWER COURT DATE OF DECISION: 30 January 2007
CCA 2007/2803
CCA 2007/2804
CCA 2007/2805
26 September 2008BEAZLEY JA
GROVE J
HIDDEN J
George TUIFUA v Regina
Robert LEE v Regina
Acura NIUQILA v Regina
Headnote
On 22 June 2006, Robert Lee, George Tuifua and Acura Niuqila each pleaded guilty to a charge of conspiracy to commit armed robbery. The relevant substantive offence is armed robbery with an offensive weapon: s 97(1) of the Crimes Act 1900, for which the maximum penalty is imprisonment for a term of 20 years.
Norrish DCJ imposed the following sentences: i) Lee - a total sentence of 6 years 9 months, comprising a non-parole period of 3 years 9 months, with a balance of term of 3 years; ii) Tuifua - a total sentence of 6 years 9 months, comprising a non-parole period of 3 years 10 months, with a balance of term of 2 years 11 months; and iii) Niuquila - a total sentence of 7 years 6 months, with a non-parole period of 4 years 9 months, with a balance of term of 2 years 9 months.
There were three other co-offenders, Sinamoni, Dodds, and Robinson, who pleaded not guilty and proceeded to trial. A jury found them guilty. Tupman DCJ sentenced Sinamoni and Dodds to a total sentence of 8 years, comprising a non-parole period of 5 years and a balance of term of 3 years. Robinson’s matter was stood over and is not relevant to this appeal.
The applicants appeal against sentence on the basis that they have a legitimate sense of grievance as to the sentences imposed on them, as compared with the sentences imposed on Sinamoni and Dodds.
Per Beazley JA (Grove and Hidden JJ) agreeing
1) Disparity in the sentencing of co-offenders engenders a justifiable sense of grievance in the applicant and an appearance of injustice to the community, such that appellate intervention is called for, notwithstanding any correct application of principle on part of the sentencing judge: [22]-[24].
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (applied); Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 (applied)
2) The applicants would each have a justifiable sense of grievance, having regard to the sentences imposed on their co-offenders: [41].
Did his Honour otherwise err in the sentencing process?
- 3) When sentencing a common law offence, the proper approach is to have regard to the maximum penalty prescribed for the corresponding substantive offence: [2]
- R v Hoar [1981] HCA 67; (1981) 148 CLR 32 (referred to); R v VAA [2006] NSWCCA 44 (referred to).
4) Norrish DCJ had regard to the sentencing guideline judgment of R v Henry [1999] NSWCCA 111, and range of sentences that should be imposed in respect of the corresponding substantive offence under s 97(1) of the Crimes Act 1900: [17]-[19]
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149 (considered)
6) The sentences imposed on the co-offenders by Tupman DCJ were not so lenient that to reduce the sentences imposed upon the applicants would itself be “ an affront to the proper administration of justice ”: [42]5) The sentences imposed by Norrish DCJ were not manifestly excessive: [41], [44].
- R v Draper (NSWCCA, Street CJ, Hunt and Wood JJ, 12 December 1986, unreported); R v Diamond (NSWCCA, Hunt CJ at CL, Smart and James JJ, 18 February 1993, unreported); R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300; R v Salcedo [2004] NSWCCA 430 (all referred to)
- 7) The applicants are re-sentenced, the notional starting point for each offender being reduced to 8 years, to be increased or decreased for the individual applicants, having regard to their particular circumstances: [43].
CCA 2007/2803
CCA 2007/2804
CCA 2007/2805
26 September 2008BEAZLEY JA
GROVE J
HIDDEN J
George TUIFUA v Regina
Robert LEE v Regina
Acura NIUQILA v Regina
1 BEAZLEY JA: On 22 June 2006, Robert Lee, George Tuifua and Acura Niuqila each pleaded guilty to a charge of conspiracy to commit armed robbery. Each was committed for sentence to the District Court. On 30 January 2007, they came before his Honour Judge Norrish QC in the District Court for sentence.
2 The charge against each of the co-accused was that between 28 June 2005 and 2 July 2005, they had conspired between themselves and others to commit an offence, namely, robbery whilst armed with an offensive weapon. Being a common law offence, the penalty is “at large”. However, it is accepted that the proper approach to sentence on such a charge is to have regard to the maximum penalty prescribed for the corresponding substantive offence: see R v Hoar [1981] HCA 67; (1981) 148 CLR 32 at [21]; R v VAA [2006] NSWCCA 44 at [5]. The relevant substantive offence is armed robbery with an offensive weapon: s 97(1) of the Crimes Act 1900, for which the maximum penalty is imprisonment for a term of 20 years.
3 The sentences that his Honour imposed for the conspiracy offence were:
Lee: a total sentence of 6 years 9 months, comprising a non-parole period of 3 years 9 months, with a balance of term of 3 years;
Niuqila: a total sentence of 7 years 6 months, with a non-parole period of 4 years 9 months, with a balance of term of 2 years 9 months.Tuifua: a total sentence of 6 years 9 months, comprising a non-parole period of 3 years 10 months, with a balance of term of 2 years 11 months; and
4 In each case, his Honour allowed a discount of 25 per cent for the utility of the early pleas that had been entered.
5 Lee and Niuqila also had further offences taken into account in the sentencing process pursuant to s 166 of the Criminal Procedure Act 1986. Lee was sentenced for 6 months for the offence of being carried in a conveyance contrary to s 154A of the Crimes Act, to be served concurrently with the sentence on the conspiracy charge. Niuqila was sentenced for 6 months for the offence of driving whilst disqualified contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998. That sentence was to be served concurrently with the conspiracy offence.
6 There were three other co-offenders, Sinamoni, Dodds, and Robinson. Those offenders pleaded not guilty and proceeded to trial.
7 On 21 December 2006, after a five week trial, a jury returned a verdict of guilty against each of Sinamoni and Dodds on the charge that between 6 May and 2 July 2005 they conspired amongst themselves and others to commit a robbery whilst armed with an offensive weapon. Robinson was also found guilty of that offence, but a question arose as to whether he was unfit to plead at the time of his trial.
8 Sinamoni and Dodds were sentenced by her Honour Tupman DCJ on 15 June 2007. They were each sentenced to a non-parole period of 5 years with a balance of term of 3 years, giving an overall term of imprisonment of 8 years.
9 The applicants appeal against sentence essentially on the basis that they have a legitimate sense of grievance as to the sentences imposed on them, as compared with the sentences imposed on Sinamoni and Dodds.
10 The matter proceeded before the sentencing judge on the following Agreed Facts. Prior to being arrested for the conspiracy offence, the applicants and their co-accused were under police surveillance. Authorised telephone intercepts revealed that they were about to commit an armed robbery on the Commonwealth Bank of Australia at Seven Hills on the morning of 1 July 2005. The intercepted material demonstrated that Tuifua was involved in organising the equipment for the proposed robbery, including a firearm and ammunition, a stolen vehicle, sledgehammers, radios and clothing intended to disguise the offenders’ identity. In the 48 hour period leading up to 1 July, all of the accused were involved in further preparatory acts.
11 It had originally been planned to commit the armed robbery on the morning of 30 June. However, there was a delay in obtaining some of the items required for use in the offence and the proposal to carry out the robbery was postponed until the following day.
12 Lee agreed that on the morning of 30 June, he and Niuqila had obtained a shortened double-barrel shotgun. Niuqila did not agree that he had been instrumental in obtaining the shotgun. Rather, he contended that his role had been to drive Lee to Guilford, where Lee had obtained the shortened double-barrel shotgun.
13 During the course of 30 June 2005, the six co-accused met and arranged the firearm, vehicles, radios, phones, clothing and disguises for use in the commission of the robbery. At about 9 am on 1 July, they left Sinamoni’s Blacktown residence and travelled to Seven Hills in three vehicles, a stolen Porsche Four Wheel Drive, a blue Ford Laser Sedan owned by Robinson and a Red Toyota Corolla, of which Niuqila was then custodian. The shotgun was transferred to the Porsche in a carpark about a kilometre from the Commonwealth Bank at Seven Hills. Sinamoni then drove the Porsche in the direction of the bank. Lee was a passenger in that vehicle. The accused were under police surveillance and at about 9.20 am, Sinamoni and Lee fled in the Porsche, the police having unsuccessfully attempted to arrest them. They were arrested shortly afterwards. At about the same time, Niuqila and Tuifua were observed by Police driving through a nearby carpark in the Corolla and were also arrested a short time thereafter. On a search of the Corolla, gloves, a balaclava and other clothing for the purpose of a disguise were found. Robinson and Dodds left the area in the Laser, but were arrested on 8 July.
14 Surveillance footage had been taken by the police on the morning of 1 July 2005 in the vicinity of Sinamoni’s residence. That footage disclosed the six co-accused standing next to the Corolla and Laser and then getting into the vehicles, which were seen driving to the end of the street. Shortly afterwards, the stolen Porsche was depicted driving in the opposite direction along the street and the Corolla and Laser were seen to complete a U-turn and follow the Porsche.
Sentencing of the applicants
15 Norrish DCJ sentenced the applicants on the basis that they were equally culpable for the offence, notwithstanding some differences in the roles each played. As his Honour did not have any information as to the role of the co-offenders Sinamoni, Dodds and Robinson other than the bare facts alleged in the indictment, he was unable to compare the roles of the applicants to those co-offenders.
16 His Honour considered that the proposed crime was serious. He observed that it was well accepted that planned armed robberies of financial institutions have always been regarded as a more serious type of armed robbery. He rejected a submission that Lee played a lesser role in the conspiracy. He considered that Lee participated in the planning of the proposed armed robbery. His Honour found that Lee proposed to participate in the raid upon the bank. Notwithstanding the planning that had gone into the intended robbery, his Honour refused to draw the conclusion, urged upon him by the Crown, that the offence was part of “organised criminal activity” or “syndicate type behaviour”. Rather, he considered that this association was through common social interests. His Honour considered that the motivation of the offenders was to obtain money.
17 Norrish DCJ observed that he was required to have regard to the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149. In Henry, Spigelman CJ indicated the range of sentences that should be imposed in respect of an offence under s 97(1) of the Crimes Act 1900, being the offence of robbery whilst armed with an offensive weapon. As I have already observed, s 97(1) is the relevant substantive offence to the conspiracy offence with which the applicants were charged. The Chief Justice stated, at [162]-[165], that a sentence of 4 to 5 years was appropriate in circumstances where the following factors were involved: (i) a young offender with no or little criminal history; (ii) a weapon like a knife, capable of killing or inflicting serious injury; (iii) a limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) a victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) a small amount taken in the robbery; and (vii) a plea of guilty, the significance of which was limited by a strong Crown case.
18 The applicants in this case fell outside that ‘profile’ in significant respects. Although each was relatively young, each had a serious criminal history; Niuqila was on parole, Tuifua was on a bond and on bail and Lee was on bail at the time of the offence; there was a significant degree of planning; and the likelihood the proceeds of the robbery would have been substantial was high. However, whilst the plea of guilty was entered in the face of a strong Crown case, its utility was substantial having regard to the early stage at which each of the pleas was entered. Norrish DCJ also observed that although there was evidence of drug usage and alcohol abuse, there was no suggestion that the offence was motivated by drug or alcohol addiction, although that was a factor relevant to explaining the behaviour of the applicants.
19 His Honour, after having noted that there were a number of significant differences between the sentencing of the applicants and the matters adverted to in Henry, stated:
- “… clearly a starting point for any sentence for this matter must be well above that of the guideline …”
Comparison of sentences
20 Sinamoni and Dodds were each given a total effective sentence of 8 years. This is to be compared with the ‘starting point’ for the sentences imposed on Niuqila, Lee and Tuifua, prior to the application of a discount for the pleas of guilty. In Niuqila’s case, the starting point was 10 years and in the case of Lee and Tuifua, it was 9 years. Ms Loukas, counsel for Niuqila, provided a helpful table setting out the sentences, the records of the offenders and a brief synopsis of the comments of the sentencing judge in each case. It is set out below, as it provides a focus for my observations which follow. (The references to “D & A” are references to drug and alcohol problems, “LC” is the Local Court and “NG” refers to a plea of not guilty.)
| Name | Head Sentence | Non-parole period | Plea | Record | Age at offence | Judge | Comment |
| NUIQILA Applicant | 7 years 6 months | 4 years 9 months | Guilty in LC 25% utility discount Starting point 10 years | Prior gaol for armed with intent armed robbery On parole | 21 | Norrish QC DCJ | Alcohol and violence in dysfunctional upbringing Footballer – drifting after selection failure Alcohol abuse Special circumstances |
| 6 years 9 months | 3 years 9 months | Guilty in LC 25% utility discount Starting point of 9 years | Firearms On bail for supply | 21 | Norrish QC DCJ | Tough upbringing Footballer – injury led to behavioural slide D & A problem – attempts at rehab Special circumstances |
| 6 years 9 months | 3 years 10 months | Guilty in LC 25% utility discount Starting point of 9 years | Aggravated robbery and RIC as a juvenile On a bond & on bail | 19 | Norrish QC DCJ | Higher intelligence Strong enduring family support – “shattered” by crime Special Circumstances |
| 8 years | 5 years | NG – 5 week trial | Fire gun in public 2 mal wounds On parole | 25 | Tupman DCJ | Found starting points of sentence of Norrish manifestly excessive Same backdate as Norrish DCJ Dysfunction Nil D & A |
| DODDS | 8 years | 5 years | NG – 5 week trial | Mainly property On bail for attempted AR | 23 | Tupman DCJ | Found starting points of sentences of Norrish DCJ manifestly excessive Rough life Parents addicts Criminal father D & A problems |
21 The critical question in this case is whether, as a result of the approach adopted by Tupman DCJ, the applicants before this Court, Tuifua, Lee and Niuqila, have a justifiable sense of grievance by virtue of the disparity between the sentences imposed on each and those imposed upon Sinamoni and Dodds.
22 The principles which govern this ground of appeal are well established. Appellate intervention is called for, not because of error on the part of the sentencing judge, but because:
- “… disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander”: Lowe v R [1984] HCA 46; (1984) 154 CLR 606 per Mason J at 613.
23 Mason J had earlier in his judgment commented, at 611, that unequal treatment under the law would lead to “an erosion of public confidence in the integrity of the administration of justice”. Dawson J, at 623, observed to similar effect, that:
- “… justice should be even-handed and … any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”
24 In Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, these principles were endorsed, but, relevantly, Dawson and Gaudron JJ also commented, at 301:
- “Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.”
Sentencing remarks of Tupman DCJ in respect of Sinamoni and Dodds
25 Her Honour, Tupman DCJ, categorised the conspiracy as relatively serious, although not at the top of the range. Her Honour referred to the plan to use a sawn-off loaded shotgun, the planning over a period of about six weeks, including the planning to steal a car and the organisation of disguises and the like. Nonetheless, her Honour considered that it was not a “well-crafted plan to commit the bank robbery”. Her Honour observed there was no evidence to suggest what was to happen after the robbery was committed, for example, where they should meet up, how much was expected to be gained and the like. Her Honour noted there was no evidence of “casing out” the bank and no evidence of the particular roles each of the conspirators would take during the course of the robbery, apart from Sinamoni and Lee.
26 Her Honour considered that as the robbery was timed to occur at opening time, although staff would be present, there possibly would be fewer customers present than at other times during the day. The bank was also located in an industrial area, so there was little passing pedestrian traffic which, although perhaps making it easier to commit the robbery and get away quickly, was likely to have meant less chance of the involvement of members of the public. Her Honour concluded the offence was in about the middle of the range in terms of its objective seriousness, when compared with “an armed robbery simpliciter”. Her Honour considered it was made somewhat more serious because it was planned and because the offender had obtained the shortened firearm. She noted, however, that care had to be taken in respect of giving consideration to obtaining the firearm, as the charge was not a conspiracy to commit an aggravated robbery with a dangerous weapon. Her Honour considered the offence was made “somewhat less serious” for the very reason that it did not happen.
27 Tupman DCJ next referred to Henry. Her Honour considered the sentences she would impose needed to be above the range referred to in that case, because Sinamoni and Dodds each had relatively extensive criminal records, there had not been a plea of guilty, nor were either of them addicted to drugs or alcohol, meaning that was not a reason for the commission of the offence. Having decided the sentence to be imposed needed to be more than the 4 to 5 years referred to in Henry, her Honour stated that the question she had to decide was “how much more?”. Her Honour then went through the circumstances of each of the offenders before her.
28 Her Honour considered the question of parity, not only as between Sinamoni and Dodds, but also with respect to the applicants in this case. Her Honour noted that Norrish DCJ had expressed the same view as she had, that this was a worse situation than Henry. Tupman DCJ noted his Honour’s remark that the appropriate sentencing starting point should be above the 4 to 5 years referred to in Henry and then noted that his Honour had “picked a starting point … which was either double or just below double the guideline referred to in Henry’s case”. Her Honour stated that Norrish DCJ had given no reasons for having made that choice. Her Honour noted that Norrish DCJ had given a full 25 per cent for a plea of guilty from that notional starting point, which, she said, “does not appear to take into account the fact that a Henry guideline-based sentence already has a plea of guilty factored into it”.
29 Next, her Honour referred to the judgment of this Court in Qing An v Regina [2007] NSWCCA 53. Her Honour noted that was a case where there had been multiple armed robberies contrary to s 97(1) and referred to [105] of my judgment in that case (with which Hislop J agreed), where I stated:
- “I consider sentences of 8 and 9 years to be outside the available discretionary range. However, I am of the opinion that some regard should be had to the acceleration in the appellant’s offending over the short period involved and that should be reflected in the sentence imposed for the last offence.”
30 Her Honour appears to have understood that finding to have been made in the context of what the appropriate individual sentences ought to be in the light of the Henry guideline. Her Honour observed the Court had found the sentences were manifestly excessive and also noted the sentences imposed of 8 to 9 years were after a trial, and that although the offences did not involve bank robberies, were armed robberies involving a knife. Her Honour also noted that the offence with which she was concerned was factually “a little more serious than any one of the individual offences” before the Court in Qing An.
31 Her Honour also had regard to the Judicial Commission’s statistics and noted that sentences of 8 to 9 years were at the very top of the range for offences of armed robbery. Her Honour considered the offence before her was not at the very top of the range of seriousness, but rather, was about the middle of the range. She considered that Norrish DCJ had similarly characterised the offence. Her Honour repeated that Norrish DCJ had provided no reasons or explanation for deciding that a starting point of 9 or 10 years was appropriate. Her Honour said that because of that, and taking into account the authorities, particularly that of Qing An, and the Judicial Commission’s statistics, she considered that Norrish DCJ fell into
- “… appellable error in sentencing Niuqila, Lee and Tuifua, based on a starting point of nine or ten years in the way that he did and providing no reason for doing so.”
She considered his Honour’s ‘starting points’ were manifestly excessive. For those reasons, her Honour considered she was not bound to sentence Sinamoni and Dodds on the basis of parity with the sentences imposed on the applicants.
32 With respect to her Honour, it was not for her to find appealable error in the approach of Norrish DCJ. Rather, her Honour’s task was to determine the sentences that should be imposed upon the accused before her, having regard to all of the circumstances. In doing so, it was incumbent upon her Honour to have regard to the sentences that had been imposed on the applicants in this case, they being the co-accused of the parties before her. It was for her Honour to sentence the accused persons before her, having regard to their relevant circumstances.
33 In sentencing the offenders before her, her Honour was entitled to have regard to relevant Judicial Commission statistics, recognising that those statistics have to be approached with care. The use and utility of such statistical information was discussed by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 738-9; (1998) 101 A Crim R 404. See also Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58 at [113] ff.
34 It was also appropriate for her Honour to have regard to other relevant authorities: R v Bloomfield at 739. However, it appears that her Honour may have misunderstood the comment at [105] in Qing An. Her Honour appears to have treated that remark as being indicative of an appropriate range for offences under s 97(1). That is not so. The reasons why the sentences of 8 and 9 years were regarded to be outside the available discretionary range in that case is clearly explained in the preceding paragraphs. In the 8 offences of which the appellant was found guilty in that case, there was mostly one victim and the proceeds of the robberies were, in relative terms, small, involving mobile phones, jewellery and some cash, in amounts varying between $15 and $1,600.
35 The point of the comment at [105] was made having regard to the objective seriousness of the offences in that case. There was also little difference in the seriousness of the individual offences committed by Qing An. The trial judge had sentenced Qing An on the first count to 6 years with a non-parole period of 4 years and 6 months. That was accepted by this Court to be within a range of sentences that could have been appropriately imposed. His Honour then increased the sentences incrementally, ultimately imposing sentences of 8 and 9 years for the last of the offences, which were of approximately equal seriousness to the first. The Court considered there was no reasonable basis for that differentiation.
36 In re-sentencing, I considered that a heavier sentence should be imposed in respect of at least one offence to take account of Qing An’s accelerating offending. Otherwise, the appropriate sentence for each offence was that imposed on the first count. Having regard to all the circumstances in that case, there was no warrant to impose a sentence of 8 or 9 years, even to take account of that last factor. There were also important and difficult considerations of totality in Qing An that needed to be taken into account. Hislop J agreed with this approach.
37 The most severe sentence imposed in Qing An was 7 years. Tupman DCJ recognised that the offences in Qing An were not as serious as the offence here. As has already been stated, she imposed a sentence of 8 years on each offender. However, not only were the offences not as serious, the individual offences in Qing An bore no comparability to the seriousness of the offence in this case. Her Honour’s reliance on it for some sort of benchmark or some statement of principle was, with respect, misconceived.
38 I am also of the opinion that, contrary to her Honour’s view, Norrish DCJ’s reasons for the starting point of the sentences he imposed in each case is apparent. I also do not understand her Honour’s comment to the effect that Norrish DCJ did not seem to appreciate that the range of sentences referred to in Henry had already taken into account the plea of guilty. There is nothing in his Honour’s remarks that would indicate that he did not have this understanding.
39 However, this is not an appeal from the sentences imposed by her Honour Tupman DCJ. The question for consideration here is, having regard to the sentences imposed by her Honour, whether the applicants have a justifiable sense of grievance in accordance with the principle articulated in Lowe and Postiglione. This question arises notwithstanding the criticisms I have made of the approach taken by Tupman DCJ.
40 In my opinion, the applicants would each have a justifiable sense of grievance in being sentenced to terms of imprisonment which are effectively more severe than those imposed on Sinamoni and Dodds. Both Norrish DCJ and Tupman DCJ treated the offenders as being equally culpable for the offence. That required, in accordance with principle, that they be sentenced equally, subject only to the need to take into account mitigating and aggravating factors relevant to the individual offender. The effect of the approach taken by Tupman DCJ means that the applicants were not treated equally. Subject to their individual circumstances, Sinamoni and Dodds were treated more leniently than were the applicants here, notwithstanding the absence of any factor differentiating the seriousness of their offending from the offending of the applicants.
41 Contrary to her Honour’s opinion, I do not consider that the sentences imposed by Norrish DCJ were manifestly excessive. Indeed, I do not consider that they could be considered harsh. Nonetheless, as I have explained, I consider that the applicants would each have a justifiable sense of grievance, having regard to the sentences imposed by Tupman DCJ.
42 This is not a case where it could be said the sentences imposed by Tupman DCJ, which although lenient, were so lenient that to reduce the sentences imposed upon the applicants would itself be “an affront to the proper administration of justice”: see R v Draper (NSWCCA, Street CJ, Hunt and Wood JJ, 12 December 1986, unreported) at 5; R v Diamond (NSWCCA, Hunt CJ at CL, Smart and James JJ, 18 February 1993, unreported) per Hunt CJ at CL at 5-6; R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; R v Salcedo [2004] NSWCCA 430 at [51], [54] and [65] per McColl JA, Levine and Hidden JJ agreeing.
43 In my opinion, it will be appropriate that the notional starting point for each offender should be reduced to 8 years. Regard will then need to be had as to whether that should be increased or decreased for any of the individual applicants, having regard to their particular circumstances. I should point out, however, that except for matters that I specifically comment upon, the applicants did not contend that his Honour failed to take into account any relevant mitigating factor, or wrongly took into account any aggravating factor. Accordingly, subject to those specific matters, I do not propose to reiterate what his Honour said in respect of the individual circumstances of each, but adopt his Honour’s remarks and endorse the relevance he placed upon such factors. I also adopt and endorse his Honour’s findings of special circumstances and his reasons for so finding.
Appeal by Tuifua
44 The applicant, George Tuifua, raised two grounds of appeal. The first was parity and the second was that the sentence imposed was manifestly excessive. Tuifua submitted that even if his sentence was to be reduced so as to take account of the principles of parity, his sentence should not be as severe as the sentences imposed upon Sinamoni and Dodds. He pointed out that he was significantly younger, at 19 years of age, than Sinamoni, who was 25, and Dodds, who was 23, at the time of the offence. Sinamoni and Dodds each had serious criminal records (set out in the table above) and each had already been subjected to periods of imprisonment. Tuifua, whilst having two robbery offences on his juvenile record and had breached a good behaviour bond by the commission of this offence, had never been imprisoned before. He had also expressed remorse, as was accepted by the trial judge. There was no evidence of remorse in the case of either Sinamoni or Dodds. In my opinion, these are relevant matters. However, his Honour had regard to Tuifua’s expressions of remorse, although he noted that Tuifua had not given sworn evidence to that effect. His Honour was also cognisant of Tuifua’s criminal history. I am not persuaded of any error on his Honour’s part in respect of these matters.
Appeal by Lee
45 The applicant, Robert Lee, had one ground of appeal, namely, that he had a justifiable sense of grievance, in the light of the sentence imposed on his co-offenders. The bases upon which he sought to establish that sense of grievance were threefold. First, he advanced the parity ground to which I have already referred. Secondly, he relied upon the significantly more serious criminal records of his co-offenders, particularly, Niuqila and Sinamoni. Thirdly, he complained that the sentences imposed on him represented an almost total accumulation of the sentence he was then serving. This was to be contrasted with the manner in which the sentences had been imposed in respect of Sinamoni and Niuqila, where, although each had parole periods of over 2 years revoked, the sentences imposed reflected an accumulation of only 6 months on that revocation.
46 At the time of the commission of the offence subject of this application, Lee was also on bail in respect of a charge of supply cannabis. He had earlier been on a s 9 bond in respect of a conviction for possession and use of a prohibited weapon. Although the evidence is not clear, it is probable that the bond expired on 30 May 2005. By the time he came to be sentenced in this matter, he had already been sentenced for the supply offence and had served a period of imprisonment, consisting of an aggregate term of 9 months commencing on 12 September 2005 and expiring on 11 June 2006, with an aggregate non-parole period of 6 months 25 days commencing on 12 September 2005 and expiring on 5 April 2006. Accordingly, just over 6 months of the period that Lee was in pre-trial custody for this offence had been served in respect of the non-parole period for the supply offence.
47 His Honour Norrish DCJ ordered the sentences that he imposed commence on 1 January 2006. The effect of this was that all but the first 3.5 months of the sentence for the supply offence were subsumed into the sentences for the present offences. This constituted an effective accumulation on the pre-existing sentence of some 3.5 months. Lee complains that this is another way in which he was treated unequally when regard is had to the manner in which the sentences were imposed on Sinamoni and Niuqila.
48 Sinamoni was on parole for offences of discharging a firearm in a public place and two counts of malicious wounding. He had been released to parole in March 2005, the period of parole being 2 years 6 months. Following his arrest, his parole was revoked and he was sentenced to the balance of parole backdated to 1 July 2005. His sentence for the earlier offences then expired on 16 April 2007. Tupman DCJ commenced Sinamoni’s sentence for the conspiracy charge on 1 January 2006, 6 months from the time he started serving the balance of his term of imprisonment for the earlier offences.
49 Niuqila was on parole for the offence of being armed with intent to commit an armed robbery on a bank. His parole was revoked upon his arrest for this offence on 1 July 2005 and he commenced serving the remaining period of his sentence for the earlier offence on that day. That sentence expired on 2 September 2006. Niuqila was also on parole for the offence of aggravated break enter and steal in company, in respect of which he was subject to a parole period of 2 years 4 months 3 weeks at the time of the commission of the conspiracy offence. Niuqila’s sentence for the conspiracy offence was ordered to commence on 1 January 2006, 6 months after he was arrested and taken into custody. His Honour observed that this was 8-9 months before the expiration of his parole period in respect of the first series of offences referred to above.
50 His Honour had earlier referred to the aggravated break enter and steal offence, but questioned whether the details he had of the sentence imposed for that offence were correct. There is also no reference to parole being revoked in respect of that offence.
51 Both Norrish DCJ, in the case of Niuqila, and Tupman DCJ in the case of Sinamoni, expressly declined to commence the sentence for this offence at the conclusion of the sentence they were each then serving pursuant to the revocation of their respective periods of parole.
52 The Crown acknowledges that although the accumulation on the balance of the parole sentences in the case of Niuqila and Sinamoni was only 6 months, this was necessary to avoid double counting. Norrish DCJ had specific regard to that, when sentencing Niuqila. His Honour stated:
- “It was submitted that I should commence the sentence that I impose from the date the offender came into custody. I have considered what Justice Simpson has said about the discretion that exists in relation to the backdating of sentences where there is a revocation of parole. I have to be very careful in light of the aggravating factor of committing this offence while subject to conditional liberty that I do not double-dip. That I do not, in effect, double punish the offender, having regard to that factor being taken into account. This case is not like the decision of Johnson of the Court of Criminal Appeal where an offender was sentenced after a non-parole period had expired but before the offender had been released to parole. There the Court determined that the appropriate sentence should commence from the expiration of the then existing non-parole period. I do not believe, however, this sentence should commence at the expiration of the parole period, that would be quite unfair, and would involve double penalty for the offender.”
53 In my opinion, no error has been shown in this aspect of the sentencing process and I would not make any change to the sentence in that respect.
Appeal by Niuqila
54 The applicant, Acura Niuqila, advanced one ground of appeal only, that as a result of the disparity between the his sentence and that of Sinamoni and Dodds, some lesser sentence is warranted in law: s 6(3). I have already dealt with Niuqila’s request to the Court, if he is to be re-sentenced, to consider the information in an affidavit declared and affirmed on 19 June 2008 in respect of his period of good behaviour in gaol. That will also be taken into account on the re-sentencing.
Orders
In respect of each applicant:
1. Grant leave to appeal against sentence;
2. Appeal allowed and sentences imposed by Norrish DCJ in the District Court be quashed;
3. In lieu thereof, the following sentences are imposed:
Tuifua
A non-parole period of 3 years 3 months commencing on 1 July 2005 and expiring on 30 September 2008, with a balance of term of 2 years 6 months, expiring on 30 March 2011. The earliest date upon which the applicant Tuifua may be released on parole is 30 September 2008.
Lee
A non-parole period of 3 years 2 months commencing on 1 January 2006 and expiring on 28 February 2009, with a balance of term of 2 years 7 months, expiring on 30 September 2011. The earliest date upon which the applicant Lee may be released on parole is 28 February 2009.
A non-parole period of 4 years commencing on 1 January 2006 and expiring on 31 December 2009, with a balance of term of 2 years, expiring on 31 December 2011. The earliest date upon which the applicant Niuqila may be released on parole is 31 December 2009.Niuqila
55 GROVE J: I agree with Beazley JA.
56 HIDDEN J: I agree with Beazley JA.
57 THE COURT: Since delivery of reasons in this matter, the Court's attention has been drawn to a discrepancy in the sentence commencement date imposed on the applicant Lee and a sentence imposed by the District Court on 14 April 2008.
58 Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the Court varies the commencement date of the sentence imposed on 14 April 2008 by the District Court of New South Wales, so that the sentence and the non-parole period are each to commence on 1 February 2009 in lieu of 1 September 2009.
01/12/2008 - Ajustment of sentence starting date for the applicant Lee - Paragraph(s) [57] and [58] 02/12/2008 - Typo - Paragraph(s) 57
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