District Court New South Wales Medium Neutral Citation: R v Tuiono [2019] NSWDC 918 Hearing dates: 7 August 2019 Decision date: 09 August 2019 Jurisdiction: Criminal Before: King SC DCJ Decision: 2 x s12 Bonds revoked on 7/8/19. Indicative sentences: 2017/001527 001 – 9 months 003 – 1 year 2018/180053 003 – 9 months 004 – 5 years + 3 months Aggregate sentence: Convicted. Special circumstances found – need for extended parole period to enable the offender reintegrate into the community. Sentenced to a total term of imprisonment for 6 years and 3 months comprising of a NPP of 4 years to commence on 8/6/18 and to expire on 7/6/22 and a balance of term of 2 years and 3 months to commence on 8/6/22 and to expire on 7/9/24. 2018/180053/003 Licence disqualification for 12 months Catchwords: CRIME – Sentence - robbery armed with an offensive weapon - drive whilst disqualified – breaches of s 9 and s12 bonds, wanton or furious driving causing bodily harm & drive whilst disqualified – cases of Bugmy, Fernando & Henry distinguished – aggravating features - subjective matters – aggregate sentence Legislation Cited: Crimes Act 1900 Road Transport Act 2013 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Gardiner v The Queen [2018] NSWCCA 27 R v Fernando (2013) 249 CLR 571 R v Henry (1999) 46 NSWLR 346 R v Matthews [2007] NSWCCA 294 Category: Sentence Parties: Regina Tuiono, Jason Representation: Counsel: Defence: Ms D Hawkins Solicitors: Crown: Mr J Jones, Ms E Hile File Number(s): 2018/180053; 2017/001527 Judgment 1. HIS HONOUR: Jason Tuiono appears for sentence in respect of an offence of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty provided is 20 years' imprisonment and there is no relevant standard non-parole period. 2. In addition, there is a further offence contained from a s 166 Certificate, drive whilst disqualified, second offence. [s54(1)(a) Road Transport Act 2013] In respect of the s 166 matter, the maximum penalty is 12 months' imprisonment and/or a $5,500 fine. It carries an automatic licence disqualification of 12 months. It may be reduced when appropriate to six months minimum. 3. The offender entered a plea of guilty on 20 December 2018 at the Central Local Court and is accordingly entitled to a 25% discount in relation to each of the offences for the utility of the plea alone. He was arrested on 8 June 2018 and has been in custody since that date only in relation to this matter. 4. At the time of the offending on 28-29 May 2018, he was subject to a s 9 bond issued by the Sydney Drug Court on 16 April 2018 for a period of six months. He has been called up in respect of that s 9 bond and it has been dealt with. He was also subject to two s 12 bonds issued at the Parramatta Local Court on 26 September 2017, one being for 12 months and the other for nine months. The nine month s 12 bond was in relation to an offence of wanton or furious driving causing bodily harm, and the 12 month s 12 bond was in respect of drive motor vehicle on a road during a period of disqualification, being a second offence. 5. The matter came before me on 7 August 2019. The offender has asked that the two s 12 bonds be called up, and on 7 August 2019 I revoked each of the s 12 bonds. Accordingly, he now has to be dealt with for the offence of robbery armed with an offensive weapon, the two revoked s 12 bonds, and the offence of drive motor vehicle during a disqualification period with a prior offence. 6. The facts are as follows: 7. On 26 May 2018, Mr Pather (aka Raj) listed his 2015 Mercedes C63 for sale on the internet site known as "Carsales", with an asking price of $120,888. 8. At about 5.30pm on 29 May 2018 Raj missed a call from a mobile number, being a mobile phone used by the offender and registered to him. About 45 minutes later, Raj returned the call and the person who answered indicated that he was interested in the car for sale. A time was arranged for the buyer to attend at the seller's home later that evening to view the car. 9. Raj arranged for his brother, Mr Patel, to be present when the potential buyer arrived for the purpose of showing him the car. 10. Patel attended at Raj's home. 11. At about 8.30pm, the offender arrived at Raj's home in The Esplanade, South Hurstville, as a passenger in a silver Toyota Corolla hatch. The offender approached Mr Patel, who was standing in the driveway, and introduced himself as Jason. 12. The offender inspected the Mercedes which was then located in the garage and requested to take the car for a test drive. Mr Patel agreed. 13. The offender sat in the driver's seat and Mr Patel sat in the front passenger's seat. The vehicle permitted keyless ignition and Mr Patel retained the fob. The offender pushed the start button of the car. 14. The offender reversed out of the driveway and drove the car along The Esplanade to Connells Point Road and turned left onto Connells Point Road. Mr Patel had noticed that the offender had some difficulty driving a European car, which made him suspicious, so he started to make small talk with the offender to attempt to get information about him. The offender informed Mr Patel that he was of Tongan heritage, a former first grade NRL player with the Canterbury Bulldogs, and that he had two children and worked as a concreter. 15. Mr Patel told the offender to turn right onto Resthaven Road but the offender turned left onto Rowe Street instead. Unsurprisingly, Mr Patel immediately sensed that something was wrong. 16. Mr Patel said, "We've got to go right." The offender replied, "Shut up." 17. The offender took out an object from his bag and placed it on his lap and turned left onto Greenacre Road. The offender pointed the object at Mr Patel's waist, and Mr Patel believed it was the muzzle of a gun. The offender said, "Give me the fucking keys." Mr Patel handed over the key fob. The offender said, "Give me the fucking phone." Mr Patel handed over his mobile phone and said, "Let me go, let me out." The offender continued to drive. 18. The offender stopped at the intersection of Greenacre and Homedale Roads and let Mr Patel out. Mr Patel ran south and made his way to Raj's home. The police were subsequently contacted. POLICE INVESTIGATION 1. A staff member from "Carsales" informed police that numerous people who had high end luxury cars listed on the website had been contacted by a person identifying themselves as "Jason" and using the mobile phone number which was Mr Tuiono's. The Carsales account associated with that phone number also had an email address linked to it, being jptuiono@icloud.com. Police checks on the RMS system showed the offender's full name to be Jason Pakalani Tuiono. The Carsales account was created on 28 October 2016 and verified by email on 12 May 2018 and by mobile phone on 25 May 2018. 2. On 25 May 2018, the offender's Carsales account had sent the following message to a person who was selling a 2016 Mercedes C63. "Hi Vic, just wondering if the car is still available. Please let me know, thanks." 3. Police received information the stolen car belonging to Raj was parked in an underground car park in Sherwood Road, Merrylands West. Police located the car in a disabled car space. The number plates had been removed and placed between the driver's seat and the centre console. 4. Police seized the car and conveyed it to the New South Wales Police holding yard for forensic examination. 5. Police obtained CCTV footage from the underground car park. The CCTV footage recorded the stolen car being driven into the car park at 6.20pm on 30 May 2018 and showed a man matching the physical appearance of the offender get out of the car and walking to and from it several times. 6. On 6 June 2018 the offender's partner, Ms Kaukauloa Faelafa, participated in a recorded interview with police in relation to the armed robbery. She confirmed that the offender had been using the relevant mobile phone on the day of the offence. She also identified the offender in the CCTV footage from the underground car park. 7. On 8 June 2018 police established that the offender was residing at a unit in Clyde Street, Croydon Park. They obtained a search warrant for the address and at 1.15 they executed the search warrant, where the offender was arrested after opening the door. 8. After speaking with a solicitor, the offender refused to participate in an electronically recorded interview, as was his right, but did participate in a forensic procedure. 9. Two fingerprints located on the interior centre-console of the stolen car were matched to the offender's fingerprints. 10. The offender was disqualified from driving at the time of the offence. 11. The Crown accepted the plea on the basis that the Crown could not prove beyond reasonable doubt that the object described at para 11 of the agreed facts was a dangerous weapon. 12. As to the armed robbery, I note that there was no actual violence used, but clearly there was a significant threat of violence to intimidate Mr Patel in order to obtain the keys to the vehicle and to force him to depart. I accept that the matter was clearly planned from the records of Carsales. It would appear that the offender had been planning the offence for at least some days prior to conducting it and was focused in particular on Mercedes C63s. The offensive weapon had the appearance to Mr Patel of being a firearm of some sort, and the offender had attended with the offensive weapon concealed in a bag ready to be produced during the course of any test drive. 13. This matter is distinguishable from those matters referred to in the case of Henry, which provides a guideline judgment in respect of offences contrary to s 97(1) of the Crimes Act 1900. In this matter, the offender was not a young person, he was approximately 29 years of age, the matter was planned at least for some days prior to the commission of the offence, and the guideline range in Henry was based on a matter where the actual discount applied was 10% rather than 25%, as here. 14. As to the offence itself, the offender was clearly committing it for the purpose of financial reward, as admitted by him to the Sentence Assessment Officer, his business not trading well at the time. The value of the car was somewhere in the vicinity of $120,000, unlike the reference in Henry to a small sum of money. How the offender intended to convert the Mercedes into money is unknown. It would have required either a rebirthing or it being broken up into parts that could be resold, or alternatively perhaps exported to an overseas destination in whole or part. The offender's intention as to which course he would follow is unknown, but he has admitted that he took the car for financial reasons. 15. In my view, the offending falls at the mid-range of objective seriousness in respect of an offence of this nature, or at best only slightly below the mid-range. 16. There are a number of aggravating factors. First of all, at the time of the offending, as previously referred to, the offender was subject to a s 9 bond and two s 12 suspended sentences. That is, he was on various forms of conditional liberty. It has long been held that offences committed when subject to any form of conditional liberty are significantly aggravated by that fact. 17. In addition, the offender has a not insignificant criminal history which started at approximately the age of 19 as an adult, with offences of violence up to mid-2008. Thereafter his offending is basically in relation to the driving of motor vehicles, there being a significant raft of offences of drive while disqualified or suspended or without holding a licence. Prior to this offending there appears to be approximately ten previous offences of drive motor vehicle during disqualification period, each time being a second offence. That is before the commission of the two offences in respect of which he had the s 12 suspended sentences, one of those being drive whilst disqualified and the other drive furiously in a motor vehicle causing bodily harm. 18. Before the Court in respect of subjective matters is a psychological report from Ms Clair Baker, dated 15 May 2019, a reference from the Reverend Fotofili, being associated with the Free Wesleyan Church of Tonga, an affidavit from Lusia Pesamino, being a sister of the offender, dated 7 August 2019, and an affidavit from Ofa Tuiono dated 7 August 2019, again being a sister of the offender. 19. In addition to his criminal history, before the Court there is a Convictions, Sentence, and Appeals Report from the New South Wales Department of Corrective Services. There is in addition a criminal history from the Northern Territory in relation to a charge of possessing a trafficable quantity of kava, which in my view is irrelevant to the current process. Subjective matters have been drawn from that material. 20. The offender did not give evidence on sentence and relies on the material tendered. 21. He is the second of four children, having one older sister and two younger sisters. Two of his sisters are married and his younger sister is completing a course at university. He is said to have had a happy childhood, his parents emigrating to Australia from Tonga in 1988, and always having been supportive of him. He apparently shares a close relationship with both his mother and father, who are healthy and remain happily married. His mother works as a registered nurse and his father is a labourer. 22. When the offender was approximately 15 years of age, his father was deported, as he had overstayed his visa, and forced to return to Tonga for approximately five and a half to six years before he was able to return to Australia and re-join his family. For that period the offender was without the influence of a father figure, and I accept that it was a difficult time for the family. However his father eventually obtained permanent residency and returned. 23. The offender attended at the Narwee primary school and then the Sir Joseph Banks High School from Years 7 to 9. He enjoyed school but had not been a great student, and in the absence of his father he commenced socialising with what is referred to as the "wrong crowd." He was introduced to marijuana and commenced to have problems at school, particularly in relation to fighting, and at the end of Year 9 he was expelled. 24. In an attempt to settle his behaviour he was sent to join his father in Tonga, where he attended a boarding school for the following two years, completing Years 10 and 11. He is said to have done well at the new school and received no formal sanctions and had no contact during that period with illicit drugs. However at the end of Year 11 he returned to Australia, particularly to assist his mother in making her residency application, as he was the eldest of her children who was an Australian citizen by birth and he needed to formally vouch for her. 25. On his return he did not return to school and so did not complete the Higher School Certificate. Soon after returning, he commenced socialising again with the same friends who had originally introduced him to smoking marijuana and he moved on this occasion from smoking marijuana to smoking "ice", or methylamphetamine, and commenced having trouble with the police. 26. After returning to Australia, he commenced working in construction for a number of different firms in relation to formwork and concreting. He worked as a contractor for a number of large firms until there was a slowdown and they were unable to continue to provide him with work. He then set up his own subcontracting business and started doing smaller concreting and formwork jobs on his own, eventually employing apparently five staff. At the time of this offending he was still conducting his business. 27. He has had a number of relationships; one when he was at high school, and a second one began after he returned in 2007. He married in 2012 and he remained married until he was imprisoned for the second time in 2015. His wife then left him. At the time of this offending, he had a current partner who he had been with for approximately a year. He had apparently had an "on and off" relationship with his current partner even before he married his wife. He is said to have a now seven year old daughter with his current partner, who was born in 2012, the same year that he had married a different partner. He claims a close relationship with his daughter and that his girlfriend and his ex-wife are supportive of him in his current situation. 28. He claimed to the psychologist that he had stopped using drugs and no longer spent time with his drug using friends. When he had returned to Australia, he initially used drugs on weekends but that quickly progressed to daily use. In 2016 he was put on the Drug Court program for a period of 18 months and completed the program, successfully breaking his addiction to "ice". He claimed to the psychologist that since completing the program he had remained drug free. That is contradicted by the content of the Corrective Services report. 29. Since being arrested and taken into custody as a result of this offending, during the period of his custody he has been in breach of prison regulations on a number of occasions. That includes, in February 2019, possess drug, and further in February, fail prescribed drug test, being the day after the offence of possess drug. It no doubt relates to the possession on the previous day, however on 16 April 2019 there was a further offence of possess drug. He has also had a number of other breaches of prison regulations relating to receiving unauthorised articles from visitor, possessing mobile phone SIM card or charger. 30. As to the commission of the offence itself, he informed the psychologist that in the months prior to the offence, his work had started slowing down and his debt was rising as he had workers and bills to pay but was not earning any money, and it had got to the point where he "desperately needed money." He wanted to avoid obtaining money via drugs, so in desperation thought that he could make some money by stealing the car. 31. It is obvious from the material before the Court by way of the letter from the Reverend Fotofili and his sisters that the offender enjoys a high degree of support from both his family and from the Tongan community. He is said to have been a very regular churchgoer. His parents are clearly well involved in the Wesleyan Church of Tonga, and indeed are said to hold services within their own home. They are both lay pastors of the congregation and his mother is the New South Wales Women's Ministry assistant choir conductor. According to the Reverend Fotofili, the offender has always been supportive of the church and participated in various aspects of its conduct. 32. He indicates in his reference, "I believe him to be truly remorseful for his actions and he is taking proactive steps to correct it. He is embarrassed by his actions." The reference however makes no reference to the Reverend Fotofili having ever visited the offender while he has been in custody since his arrest in relation to this matter, and there is nothing contained in the reference which indicates how it is that he has come to believe that he is truly remorseful, other than perhaps as a result of what he has been told by other family members. 33. As to the affidavits of his sisters, Ofa Tuiono stated, "Speaking to Jason, he has expressed remorse whilst being in gaol." She was called to give evidence at the Crown's request, the affidavit having been tendered, and in part the effect of her evidence was that, within the narrow issue that she was cross examined on, that the offender has in the past always expressed remorse and contrition in relation to his past offending conduct. 34. Despite such expressions in the past, despite what is a loving family and supportive surroundings in his youth, the offender has committed a significant number of in particular driving offences over the years. It is at least favourable to him that the offences of violence were in his very young years and that there has been no repetition of violence since those years. 35. It is difficult to assess the presence of genuine remorse and contrition in relation to matters where the offender does not give evidence. A plea of guilty in itself is not necessarily evidence of remorse or contrition, particularly where the plea is entered in the face of an overwhelming Crown case. Although there is nothing contained in the facts that indicates that Mr Patel was ever asked to identify the offender, it seems to me highly likely that apart from the CCTV video footage of him, the use of his own mobile phone and details that are connected to him, that he would have been readily identifiable by Mr Patel because of his distinctive Tongan features. 36. Although it can be readily said in relation to this offending that it is an offence that with any reasonable consideration of the likely consequences, the offender must have realised there was an extremely high probability that he would be able to be identified and subsequently arrested. That it was a stupid or dumb offence does not however negate or lower the objective seriousness of the offence. 37. It has been submitted on the offender's behalf by Ms Hawkins, barrister, that the principles referred to in Bugmy and Fernando are relevant, particularly in respect of the period of time of the family's difficulty when the father was deported to Tonga. Having read all of the material, I am of the view that Bugmy and Fernando have no application in this matter, although I take into account those particular circumstances as having given rise to his turning to prohibited drugs and the original offences of violence in those circumstances. However his father has been back in Australia for a considerable period of time, since approximately when the offender was some 21 or 22 years of age. 38. Ms Hawkins has in particular relied on two cases in making her submissions on behalf of the offender, being R v Matthews [2007] NSWCCA 294 and Gardiner v The Queen [2018] NSWCCA 27. I have carefully read each of those decisions. In my view they are so distinguishable from this matter that they can be properly referred to as providing no assistance, and being irrelevant. I have of course had regard to the statistics available through JIRS, and in particular, as previously referred to, the guideline judgment of Henry. As I have already referred to, in my view this matter is significantly more serious than the typical case as referred to in Henry for the reasons previously expressed. 39. I have taken all of those matters into account in determining appropriate sentences in relation to each of the offences. As I intend to proceed by way of an aggregate sentence, I am required to provide an indicative sentence in relation to each of the matters in relation to which a sentence must be provided. 40. As to remorse and contrition, I will accept that the offender has expressed remorse and contrition to the psychologist, noting that she stated, "On a positive note, Mr Tuiono repeatedly expressed his remorse for his current offending." I accept that a psychologist would understand what remorse is and that, however he expressed it to her, remorse was expressed. 41. As to the risk of reoffending, the psychologist assessed him in respect of general offending as being in the low risk category, and in respect of the risk of violent reoffending, the low to medium range. I accept her assessment that in relation to offences of this nature he can appropriately be regarded as in the low to medium range of risk of reoffending. 42. In relation to offences of drive while disqualified, however, in my view he could only ever be assessed as being a high risk in view of the very large number of previous related or similar offences. 43. In respect of the two s 12 bonds, in respect of H number 63354350 Sequence 1, being the offence of furious driving causing bodily harm, the indicative sentence is nine months' imprisonment. In respect of the offence with the same H number but Sequence 3, being drive while disqualified, second offence, the indicative sentence is 12 months' imprisonment. In respect of the matter contained on the 166 Certificate, being H number 344433493, Sequence 3, drive while disqualified, second offence, the indicative sentence is nine months' imprisonment and the automatic period disqualification of 12 months will apply. That is, he is disqualified for 12 months. 44. I note in relation to the revoked s 12 bonds that, on my understanding, that the previously ordered disqualification periods by the magistrate still stand. If they do not, I would have imposed the same periods as were imposed by each of the magistrates. 45. In relation to the offence of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900, the indicative sentence is imprisonment for five years and three months. I have taken into account the Crown's concession in relation to drive while disqualified on the occasion of the robbery, that it would have been open to the Court to make any imprisonment in respect of that offence to be served wholly concurrently with the armed robbery offence. 46. I have taken into account each of those indicative sentences and also the principle of totality, in particular in relation to this offending conduct, as well as the indicative sentences determined in respect of the revoked s 12 bonds. 47. In those circumstances, Mr Tuiono, would you please stand. You are convicted in relation to the offence of robbery armed with an offensive weapon, and also in relation to the matter of drive motor vehicle during disqualification period contained on the s 166 certificate. The sentence will be a non-parole period of four years commencing from the date that you were taken into custody, that is, 8 June 2018. The non-parole period will expire on 7 June 2022, when you will be first eligible for parole. The balance of term is two years and three months, giving a total sentence of six years and three months. The total sentence will expire on 7 September 2024. 48. I have found special circumstances warranting a reduction in the non-parole period from the statutory relationship to the balance of term, reducing the non-parole period in your favour by what, from memory, I believe is about eight and a half months. 49. You can sit down, Mr Tuiono. That's a total sentence of six years, three months commencing on 8 June 2018, a non-parole period of four years, which makes you eligible for parole on 7 June 2022, and a balance of term of two years three months, the total sentence expiring on 7 September 2024. Any error or miscalculation detected? 50. HAWKINS: Just, your Honour, with respect to the two s 12 bonds, is it possible for your Honour to indicate the dates with respect to that? 51. HIS HONOUR: I don't. They're indicative sentences. They're taken into account in relation to the aggregate sentence. So they don't get dates to start or end. No indicative sentence does. 52. Mr Tuiono, I hope you understand that your release on 7 June 2022 will be dependent on how you go while you are in custody. If you continue to commit breaches of prison regulations of any significance, whether that be in relation to violence or being found with drugs or to have consumed drugs, it will significantly affect the possibility of you being released on 7 June 2022. You seem, at least in relation to your past history with the Drug Court, to have done well. It would be really, really stupid of you to put yourself in such a position that the authorities would consider not releasing you in June of 2022. But that's entirely up to you. Is there any matter I've omitted? JONES: No, your Honour. HIS HONOUR: Thank you. HAWKINS: Thank you, your Honour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2020