Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Taumoepeau v R, Siaki v R [2020] NSWCCA 200 Hearing dates: 21 July 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Before: Leeming JA at [1] Lonergan J at [2] Hidden AJ at [3] Decision: In the case of each applicant: 1. Extension of time to apply for leave to appeal is granted. 2. Leave to appeal is granted and the appeal is allowed. 3. The sentence in the District Court is quashed and in lieu thereof: 4. The applicant is sentenced to imprisonment for 10 years and 6 months, commencing on 23 December 2015 and expiring on 22 June 2026, with a non-parole period of 6 years and 6 months, expiring on 22 June 2022. 5. The applicant will be eligible for release to parole on 23 June 2022. Catchwords: CRIMINAL LAW – applications for leave to appeal against sentence – attempted possession of commercial quantity of unlawfully imported border controlled drug (cocaine) – early pleas of guilty – utilitarian value of the pleas not taken into account – applicants sentenced before decision in Xiao v R – error found, applicants resentenced Legislation Cited: Crimes Act 1914 (Cth), s 16A Criminal Code 1995 (Cth), ss 307.5(1), 11.1(1) Cases Cited: Bae v R [2020] NSWCCA 35 Cameron v The Queen (2002) 209 CLR 339, [2002] HCA 6 Huang v R [2018] NSWCCA 70, 272 A Crim R 266 Tyler v R [2007] NSWCCA 247, 173 A Crim R 458 Xiao v R (2018) 96 NSWLR 1, [2018] NSWCCA 4 Category: Principal judgment Parties: Siosaia Taumoepeau (Applicant) Siotame Siaka (Applicant) The Queen (Respondent) Representation: Counsel: Mr J Brock (Applicant Taumoepeau) Mr S Fraser (Applicant Siaki) Mr A McGrath (Crown) Solicitors: Legal Aid NSW (Applicant Taumoepeau) Schneider Legal (Applicant Siaki) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2015/377933 2015/377930 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 23 June 2017 Before: Woodburne SC DCJ File Number(s): 2015/377933 2015/377930 Judgment 1. LEEMING JA: I agree with Hidden AJ. 2. LONERGAN J: I agree with Hidden AJ. 3. HIDDEN AJ: The applicants, Siosaia Taumoepeau and Siotame Siaki, were committed to the District Court for sentence on a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine, an offence under s 307.5(1) and s 11.1(1) of the Criminal Code 1995 (Cth) which carries a maximum sentence of imprisonment for life. On 23 June 2017, each of them was sentenced to imprisonment for 12 years and 6 months with a non-parole period of 7 years and 6 months, to commence on the date of their arrest, 23 December 2015. Each of the applicants seeks leave to appeal against that sentence. 4. The applications are well out of time, having been filed for Mr Taumoepeau on 14 May 2020 and Mr Siaki on 6 May 2020. However, as will be seen, they are founded upon the decision of this Court in Xiao v R (2018) 96 NSWLR 1, [2018] NSWCCA 4, which was handed down on 5 February 2018, after sentence had been passed. The subsequent delay is satisfactorily explained in affidavits by the applicants and their solicitors, and in this Court the Crown Prosecutor did not object to the necessary extension of time. In these circumstances, it should be granted. 5. In the light of the limited issue giving rise to the applications, and the parties' approach to the matter, the material before the sentencing judge can be summarised relatively briefly. Facts 1. On 11 September 2015, a hydraulic press was imported to Australia from Panama, arriving at Port Botany in Sydney. An inspection of the item by officers of the Australian Border Force and the Australian Federal Police ("AFP") discovered secreted within it a cylinder, which contained a large quantity of white powder, of which 47.597 kilograms was pure cocaine. The estimated wholesale value of the drug was $12,798,000, and the estimated street value was between $34,028,390 and $42,875,772. The AFP officers replaced the cocaine with an inert substance and reconstructed the consignment. 2. Although originally destined for Melbourne, the delivery address was changed by the overseas freight forwarder to 2/29 Sammut Street, Smithfield, a warehouse which was the registered address of TS Holdings Pty Limited. That company, registered in 2014, was in the business of importing and distributing banana flour and other food products. The applicant Siaki was the sole director of the company, but the business was run by both applicants. 3. The AFP delivered the reconstructed consignment to the warehouse on 21 September 2015. Surveillance devices were placed within the premises and the applicants' phone calls were intercepted. Mr Taumoepeau accepted delivery of the consignment, and Mr Siaki was present in the warehouse at the time. 4. Between 21 September and 8 December 2015, both applicants attended the warehouse on a regular basis. However, they did not approach the consignment during this period except on 25 November, when Mr Siaki was seen walking around it and looking at it. 5. Between 9 and 22 December 2015, the applicants took a number of steps to retrieve the packages containing the inert substance from the hydraulic press. This involved their purchasing various items, and using various tools and a forklift. Mr Taumoepeau video recorded various stages of this process. On some days during this period Mr Siaki's nephew attended the warehouse. (He was charged as an aider and abettor, and at the time the applicants were sentenced was awaiting trial. The Court was not informed of the outcome of that matter.) 6. As noted, both applicants were arrested on 23 December 2015. Both declined to be interviewed. On the same day a search warrant was executed at the warehouse, where various items were found. These included a notebook with handwritten instructions about how to film the consignment. Also in the notebook was a reference to "acetone, hydrochloric acid" and another notation "TYPE IN HOW TO TEST COC". 7. In the sentencing proceedings both applicants provided explanations for their involvement in the offence. Each had provided an account to a psychologist, who provided reports. In addition, Mr Taumoepeau provided a handwritten letter to the sentencing judge and gave evidence. Mr Siaki also prepared a handwritten letter to the judge. Her Honour accepted those accounts in essential respects. 8. The effect of both their accounts was that TS Holdings was a small business intended to import, and introduce into the health food market, banana flour and other foods from the Pacific Islands. However, the business was not successful. Banana flour was outflanked by the introduction of coconut flour, and they were left with a large amount of stock which was not saleable. Both of them suffered significant financial difficulty as a result. 9. Mr Taumoepeau's evidence, relied upon by Mr Siaki, was that in August 2015 they were approached by a person they did not know, but whom they met through mutual acquaintances, who asked them to store a hydraulic press at the warehouse for a period of about a month. They agreed to this, not knowing that there was anything illegal involved. The hydraulic press arrived in the following month and they assumed that it would be picked up in due course. 10. However, about a month and a half after the delivery, they were approached by an unidentified person and were given an "ultimatum". They were told that they could open and gain access to the hydraulic press and be paid a significant amount of money having done so, or they could choose not to open the press and it would be taken away. As to that latter option, they were told that if anything went wrong after it was taken away, such as the machine or its contents being stolen or there being any difficulty with police, they would be blamed. Threats were made both to them and their families. They were given one day to decide. 11. By this stage they knew that whatever was stored inside the hydraulic press was illegal. They took the threats seriously because this appeared to be a sophisticated criminal enterprise. Mr Tamoepeau said that because of the threats he did not believe that going to the police was an option. 12. They agreed to do what they were asked. They were given instructions, cash for incidental expenses and Blackberry phones for communication. Upon gaining access to the hydraulic press, they were told to remove the packages inside it, count them and pack them into boxes. They realised that the press contained a substantial quantity of drugs. They were also instructed to videotape the press and the packages. 13. Mr Taumoepeau said that, while he was never told exactly how much they would be paid, he believed it would be in the order of $20,000 to $30,000. As noted, both of them were under financial pressure at the time because of the failure of the business. Mr Taumoepeau was on a Newstart Allowance and also had expenses relating to his wife's medical care, to which reference will be made later. Mr Siaki's account also referred to his responsibility for his mother, who was in poor health, and his younger siblings. 14. Of course, neither of them received the promised payment. Subjective cases 1. In their subjective cases each of the applicants relied upon the psychological report in respect of him, together with a number of character references. Mr Taumoepeau also gave evidence on this issue, and Mr Siaki dealt with it in his handwritten letter to the judge. It is sufficient to refer to the salient features of that material. Taumoepeau 1. Mr Taumoepeau was 30 years old at the time of the offence, and is now 35. He has a criminal history comprised mainly of driving offences, but which includes convictions for maliciously inflicting grievous bodily harm with intent and assault occasioning actual bodily harm, apparently arising from the same incident in 2007. For those offences he was sentenced to a significant term of imprisonment. He has no history of drug offences. 2. He was born in Australia to Tongan parents, and retains strong cultural ties to his Tongan heritage. His background was marred by physical abuse by his father and witnessing domestic violence between his parents, together with bullying in his early years at school. He left school in Year 11, following a persistent pattern of misbehaviour. He was involved in a car accident at the age of 18, resulting in a fractured vertebra which took a long time to heal and still causes him pain. 3. He married at the age of 21. His wife has a background of severe depression, chronic anxiety and attempted suicide. She also suffers from fibromyalgia, a rare and severe form of arthritis. They have a daughter who was effectively adopted, they having cared for her since she was a baby because her biological parents could not do so. She was 5 years old at the time of sentence. 4. Following his release on parole from his prison term in 2012, he had difficulty finding and maintaining employment. In 2013 he was devastated to discover that he was infertile. This, among other things, compromised his relationship with his wife. They separated in late 2012 but got back together in October 2014. In that same year he was diagnosed with depression by his general practitioner. 5. As noted, at the time of the offence he was experiencing financial difficulty, complicated by his wife's illness and the expenses associated with it. Against all this background, the psychologist expressed the opinion that at the time of the offence, in addition to his fear for himself and his family, he was in a negative state of mind which was likely to have impaired his judgement and his ability to consider alternative options. 6. After his arrest and remand in custody, he suffered the anxiety of his wife being admitted to hospital on a number of occasions, and at the time of sentence doctors were investigating whether she had multiple sclerosis. His incarceration had also had an adverse impact on their daughter. The sentencing judge considered that "some account" should be taken of this as a subjective circumstance, noting that his wife would be deprived of the assistance she would otherwise have had in raising their daughter, and that the daughter would effectively be deprived of her father. Her Honour found that the applicant was "acutely aware of the damage he had inflicted by his actions". 7. While in custody he became a born again Christian. He said that he wanted to help younger inmates, particularly young Pacific Islander men, because he had "been through what these boys had been through". A chaplain described his contributions at bible study as "well considered and highly constructive to quality group discussions". 8. Both the psychologist and her Honour observed him to become highly emotional when speaking about his family. At the time of sentence he had been maintaining a close relationship with his parents and extended family, together with a large number of people who attended court to support him. 9. Her Honour concluded that he was genuinely remorseful for his offence and, in the light of that remorse and his acceptance of responsibility, his plea of guilty and his extensive family support, he had good prospects of rehabilitation. Siaki 1. Mr Siaki was 26 years old at the time of the offence, and is now 31. He also has a criminal history, the only entries of significance being related offences of assault occasioning actual bodily harm, common assault and affray, arising from an incident in January 2009, for which he was sentenced to periodic detention. He also has no history of drug offences. 2. Like Mr Taumoepeau, he was born in Australia to Tongan parents. His parents were strict, and he was subject to severe physical discipline. They separated when he was 5 years old, and he was deeply affected by this development. During his teenage years he lived between two homes. However, as an adult he developed strong relationships with his parents and his siblings and at the time of sentence his family were supportive of him. 3. He is a single man with no dependants. He was educated to Year 12 level. He played representative Rugby League, but this came to an end after he suffered a serious knee injury. After completing school he worked in various capacities prior to embarking upon the business in which he was engaged at the time of the offence. 4. He suffered some stress while in custody after his arrest, particularly when he learned through watching a news broadcast of the death of his 14 year old cousin while swimming at a beach. However, in a reference, a prison chaplain expressed the view that his incarceration had caused him "to take a good hard look at his life". The chaplain noted that his life had changed from one in which he had sought to "make his fortune at the expense of our community through dealing with illicit drugs" to doing the intimate laundry at Long Bay Hospital. He was said to be "much more fulfilled as a person now, because he has experienced a contentment that comes through serving his fellow man, even if it means doing their filthy washing". 5. A reference from his sister also described changes in his attitude since his arrest. She affirmed his strong commitment to his family, noting his concern about the health of his parents, both of whom had heart conditions. 6. Her Honour found that he also was remorseful, and that his experience of imprisonment had had a salutary effect, bringing home to him the seriousness of his offence and the consequence of his actions. In the light of that remorse, his plea of guilty, his "developing insight" into the seriousness of his conduct and his extensive family support, she concluded that his prospects of rehabilitation were "generally good". 7. I shall turn later to her Honour's assessment of the significance of the applicants' pleas of guilty, which is at the heart of these applications. Sentencing judge's findings 1. Her Honour described the applicants' criminal enterprise as "a serious instance of the offence". She noted that the amount of cocaine involved, just over 47.5 kilograms, was almost 24 times the commercial quantity threshold of 2 kilograms. She accepted that the offenders did not know the precise quantity before accessing the drug and extracting it from the hydraulic press. Nevertheless, she found them to have played an "important" and "equal" role in a sophisticated drug operation. Their task was to receive and warehouse the press concealing the cocaine, and extract the drug for distribution by others. They were "a crucial link in the chain between the importation and the expected distribution" of the drug. 2. That said, as noted above, her Honour accepted that the applicants learned that the hydraulic press contained something illegal and highly valuable only when they were asked to open it and retrieve the cocaine, this being some time after it had been delivered to the warehouse. As also noted, she found that their participation in the offence was motivated in part by the threat made to them and their families, while observing that in so doing they chose "to protect their interests and their families' interest above the interests of those of other families in the community". Her Honour noted that their participation was also motivated by an anticipated financial reward of the order of $20,000 to $30,000. 3. Her Honour also found that the applicants brought Mr Siaki's nephew into the operation by having him present on days during which they were attempting to access the cocaine inside the hydraulic press. In that sense they had involved him in the commission of the offence and, at the least, they had exposed him "to the risk of being associated with the illegal operation and indirectly thereby exposed him to the very people that they maintained had threatened them". 4. Her Honour referred to the need for general deterrence. As to specific deterrence, she said that she was "satisfied that a period of imprisonment will sufficiently deter these offenders from misconduct in the future", referring also to the need for adequate punishment. 5. Her Honour had regard to the applicants' subjective cases, finding that there were "strong subjective circumstances to be taken into account in their favour". She determined that identical sentences were warranted, finding that the applicants had an "equal role" in the offence and that their subjective factors were to be given "a similar weight". 6. No issue was taken in this Court with any of these findings. The applications 1. The applications are brought on the ground that the sentencing judge failed to take into account the utilitarian value of the applicants' pleas of guilty. The Crown concedes that this ground is made out and that this Court's discretion to resentence is enlivened. 2. As I have said, both applicants pleaded guilty in the Local Court. As to Mr Taumoepeau, her Honour referred to the date of his arrest, 23 December 2015, and continued: "The brief of evidence was served by August 2016. The offender pleaded guilty on or about 28 September 2016 at the Central Local Court and he was committed for sentence to this Court. The plea was clearly entered at an early opportunity. It was also entered in the face of an extremely strong Crown case. However I am satisfied that it involved an acceptance of responsibility and that the plea together with other material before the Court demonstrates genuine remorse." As to Mr Siaki, her Honour noted a similar chronology in the entry of the plea and continued: "The plea was clearly entered at an early opportunity and in the face of an extremely strong Crown case. As with Mr Taumoepeau, I am satisfied it involved an acceptance of responsibility and that plea, together with other material before the Court, demonstrates genuine remorse." 1. Her Honour's sentencing exercise was governed by s 16A of the Crimes Act 1914 (Cth). In particular, she was required to take into account the applicants' contrition: s 16A(2)(f), and the fact of their pleas of guilty: subs (2)(g). While her Honour noted that the pleas of guilty were entered early, she made no express reference to their utilitarian value and it is common ground that she did not take that into account. This was consistent with authority at that time, referred to by the Crown prosecutor in the District Court in written submissions, to the effect that it should not be taken into account when sentencing for Federal offences: Cameron v The Queen (2002) 209 CLR 339, [2002] HCA 6, at [14] (343); Tyler v R [2007] NSWCCA 247, 173 A Crim R 458, at [114] (476). 2. That position was altered by the subsequent decision of a five judge bench in Xiao (supra), in which it was held that in sentencing for a Federal offence a court is entitled to take into account the utilitarian value of a guilty plea: at [280] (51). In Huang v R [2018] NSWCCA 70, 272 A Crim R 266, Bathurst CJ added, at [9], that sentencing judges should take into account the utilitarian value a plea in Commonwealth sentencing offences and that failure to do so constitutes error. Both decisions emphasise the desirability of specifying a discount allowed on that account. 3. As I have said, here counsel for the Crown conceded error and the capacity of this Court to resentence. He added that, in approaching that task, the Court should have regard to the approach set out by Johnson J, with whom Bell P and Walton J agreed, in Bae v R [2020] NSWCCA 35, at [55]-[57]: "55. It will be apparent from the authorities referred to so far…that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender's favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations. 56. As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]: "Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary." 57. The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender." 1. In the light of the development of the law since her Honour dealt with the applicants, I am satisfied that this Court should intervene and that a lesser sentence than that imposed by her Honour is warranted. Resentence 1. For the purpose of resentence further evidence was received in the case for each applicant: affidavits of Mr Taumoepeau and his instructing solicitor, and an affidavit of Mr Siaki. 2. In Mr Taumoepeau's case, this evidence revealed matters of concern in 2018. He had to drop out of a rehabilitative program because he became preoccupied with the health of his father, who was diagnosed with throat cancer. His relationship with his wife came to an end and he has not since had contact with her and is unaware of her whereabouts. Their daughter returned to her biological mother, and he had no contact with her until this year, when he was put back in touch with her through his family. On a positive note, he continues to enjoy strong support from his family. He has recently completed a Positive Lifestyle Program conducted by the Salvation Army, in which he was said to have "engaged well with the content" and to have been "willing to be challenged and to review his thinking when faced as issues have presented". He is currently engaged in the Bush Gang program, which involves him in forest work outside the correctional centre where he is held. 3. In his affidavit Mr Siaki confirmed the challenges of prison life but also the salutary effect it has had upon his personal insight and outlook. He has undertaken a number of programs, including an Adult Nucleus Program focussed on personal responsibility and future planning, and several educational programs, including a hospitality course in which he has learned a number of valuable skills. He has also participated in the Defence Community Dog Program, a trusted position which involves training dogs to be used to assist ex-servicemen to deal with post traumatic stress disorder. 4. It is appropriate to take this new material into account. Counsel for Mr Taumoepeau noted the further stressful period in his client's incarceration, and counsel for both applicants relied upon the evidence as affirming and enhancing the prospects of rehabilitation which they had demonstrated at the time of sentence. 5. Counsel for the Crown acknowledged that the Court should resentence the applicants, but submitted that those sentences should be only "slightly less severe" than those imposed by her Honour. He argued that, but for the identified error, her Honour had correctly applied relevant sentencing principles and the sentences imposed by her were well within the discretionary range open. 6. He noted her Honour's observation that the pleas of guilty were entered early and demonstrated an acceptance of responsibility and genuine remorse. It was in this context that he relied upon the passage from Bae cited above, in particular the reference by Johnson J to the need for a sentencing court to guard against double counting. Nevertheless, as counsel for Mr Taumoepeau pointed out, her Honour's reference to the plea being entered early was qualified by the observation that it was entered in the face of a very strong Crown case. In that sense her Honour took it into account as a subjective factor, without regard to the objective factor of its utilitarian value. Appropriate weight needed to be given to that objective consideration. 7. Counsel for the applicants submitted that their role in the offence should be seen as placing them at the lower end of the hierarchy of those involved in the enterprise. Her Honour made no assessment of that kind and, in my view, it is appropriate to have regard to her findings as to their involvement without doing so. Those findings include the mitigation of their moral culpability by the degree of duress which led to that involvement. 8. Her Honour had been provided with a series of comparative cases dealing with sentence for offences of this nature in this Court and the Victorian Court of Appeal. There is no need to set them out, and counsel did not address them in argument. They can only be of limited assistance, given the unusual circumstances of this case and the fact that they were all decided before this Court's decision in Xiao. 9. It was common ground that the appropriate discount for the utilitarian value of the applicants' pleas is 25%. Counsel for the applicants did not suggest that the head sentence of 12 years and 6 months passed by her Honour should be the starting point. It is appropriate that the same sentence be imposed upon each applicant, and the contrary was not suggested in argument. 10. I consider the appropriate starting point of sentence to be imprisonment for 14 years. Reduction of that figure by 25% leads to a term of 10 years and 6 months. I would fix a non-parole period of 6 years and 6 months. Accordingly, in each case I would propose the following orders: 1. The necessary extension of time to apply for leave to appeal is granted. 2. Leave to appeal is granted and the appeal is allowed. 3. The sentence in the District Court is quashed and, in lieu, the applicant is sentenced to imprisonment for 10 years and 6 months, commencing on 23 December 2015 and expiring on 22 June 2026, with a non-parole period of 6 years and 6 months, expiring on 22 June 2022. The applicant will be eligible for release to parole on 23 June 2022. ********** 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: 12 August 2020