New South Wales Supreme Court CITATION : R v Taufahema [2007] NSWSC 1460 HEARING DATE(S) : 30 November 2007 JUDGMENT DATE : 13 December 2007 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J DECISION : Sentence imposed; (see pars 18-19) CATCHWORDS : CRIMINAL LAW - Manslaughter - Sentence PARTIES : Regina v John Taufahema FILE NUMBER(S) : SC 70236/02 COUNSEL : M Grogan (Crown) A P Cook (Prisoner) SOLICITORS : Solicitor for Public Prosecutions (Crown) Joanne Harris (Prisoner) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Thursday 13 December 2007 70236/2002 REGINA v John TAUFAHEMA SENTENCE 1 HIS HONOUR: John Taufahema, you appear for sentence after pleading guilty to the manslaughter of Glenn McEnallay. You offered that plea to arraignment upon an indictment charging murder and the Crown has expressly accepted your plea of guilty to manslaughter in full discharge of the indictment. I have convicted you accordingly. 2 There are some matters which I should refer to. I will do so briefly, not to minimize their importance, but noting that you and your legal advisers are well aware of the chronology and I have made public statements earlier this year when imposing sentence on your brother Motekiai Taufahema for his participation in the events surrounding the killing of Senior Constable McEnallay. 3 You were one of the four occupants of a reportedly stolen motor car which he approached in the execution of his duty as a highway patrol officer. It was another occupant of the car, Sione Penisini, who produced a pistol and fired the shots which killed Senior Constable McEnallay. 4 You were presented for trial before Wood CJ at CL and pleaded guilty to using an offensive weapon in company with intent to prevent lawful apprehension, attempted carjacking and using a firearm without authority. You pleaded not guilty to murder but after trial you were found guilty by the jury. On 16 February 2007 the Court of Criminal Appeal allowed an appeal against that conviction and ordered a new trial. It is in respect of the new trial that the Crown indicated that it would be minded to accept a plea of guilty to manslaughter if you chose to offer it. As I have said, you did so, and that plea of guilty was effectively offered at the earliest opportunity. 5 There is an agreed statement of facts upon which I am content to proceed. These facts represent available findings from the evidence and I make those findings to the requisite standard. Included in the agreed facts is an express statement of the basis of your liability for the crime of manslaughter. 6 I should specify those facts. "On 27 March 2002 John Taufahema, his brother Motekiai Taufahema, Meli Lagi and Sione Penisini went to Bankstown. They collected a green commodore sedan (hereafter 'the commodore'). The vehicle was supplied to Penisini. The commodore's owner had reported it stolen some months earlier. The report was false and was part of an attempted fraud on an insurance company. The occupants of the vehicle were not involved in the fraud, however each was on parole in relation to other offences. Motekiai Taufahama drove the commodore from Bankstown to his flat in Little Bay. He was at that time unlicensed. The accused, Lagi and Penisini were passengers. On the way to the flat two off duty police officers noticed the commodore while it was driven in a fast and erratic manner in Botany Road Matraville. The officers followed the commodore to Little Bay but eventually lost sight of it. While looking for it they saw an unmarked police vehicle occupied by Constable McEnallay. They told him about the vehicle. Constable McEnallay made radio enquiries and established that the vehicle had been reported stolen. Motekiai Taufahema drove the commodore from his flat at Mirrabooka Crescent Little Bay to Bunnerong Road. The other three men were in the vehicle, which also contained four fully loaded revolvers, two pairs of gloves, a quantity of ammunition and a hockey mask. The accused and his passengers had joint possession of the revolvers. It was established that they had been stolen from a security business in Marrickville on 14 March 2002. There is no evidence that the accused was involved in the theft. At about 5.48 pm Senior Constable McEnallay started following the commodore. When he reached the intersection of Dennison Road and Beauchamp Road, Hillsdale he activated his vehicle's siren and lights. Motekiai Taufahema then accelerated and made a sharp right hand turn into Grace Campbell Crescent. At around 5.51 pm the commodore was effectively immobilized. One of its wheels was damaged as the result of impact with the gutter or a traffic island. Constable McEnallay stopped the police vehicle a short distance from the commodore. Penisini got out of the vehicle, pointed his revolver at the police officer and fired five shots. Four of the bullets struck Constable McEnallay in the chest and head. A week later he died from his wounds. Penisini, the accused and the other occupants ran from the vehicle. At that time each was armed with a loaded revolver. John Taufahema and Penisini were arrested not far from the scene of the shooting. Motekiai Taufahema ran down Grace Campbell Crescent. He entered the yard of a residence in Rhodes Street Hillsdale and hid the revolver in a garden. He was arrested a short time late and the revolver was found where he had hidden it. Lagi escaped but was arrested a few days later. Basis of the accused's liability for manslaughter The accused admits that he was complicit in the act that caused Constable McEnallay's death. His complicity arises from his participation in a joint criminal enterprise to possess the revolvers. They fall within the definition of 'firearm' in the version of the Firearms Act 1996 applicable to this matter. Section 7(1) of that Act creates an offence if a person possesses a firearm without having a licence or permit to do so (foundational offence). The possession was an ongoing offence and included travelling in the vehicle with the loaded revolvers. Neither the accused nor the other occupants were authorised to have possession of the revolvers. The accused contemplated the possibility that one of the occupants might discharge a revolver (incidental offence) but without the intent to kill or inflict grievous bodily harm. In the absence of a lawful purpose, the firing of a firearm in or near a public place is a breach of section 93G(1)(b) of the Crimes Act . That conduct would also constitute an unlawful and dangerous act. Penisini's firing of the weapon caused Constable McEnallay's death. Notwithstanding the accused's contemplation that one of them might discharge one of the firearms he maintained his participation in the commission of the foundational crime." 7 As I commented when sentencing your brother, and the same applies to you, and without engaging in a dissertation about liability for joint criminal enterprise, it is not, and never has been suggested that any physical act by you contributed to the actual homicide and your culpable mental state is as defined in the agreed facts which I have just read. 8 At the time of sentence following your now quashed conviction for murder, you were also sentenced for the other offences which I have mentioned and to which you had at that time, pleaded guilty. In each case you were sentenced to a fixed term of imprisonment as follows: (a) for using an offensive weapon in company with intent to prevent lawful apprehension, to imprisonment for 7 years dating from 27 March 2004; (b) for attempted carjacking, to imprisonment for 6 years dating from 27 March 2002, and (c) for using a firearm without authority, to imprisonment for 5 years dating from 27 March 2002. 9 Save the lastmentioned sentence which has expired, these sentences remain in effect. In imposing sentence today the principle of totality needs to be borne in mind and hence questions of cumulation and concurrency are matters which require the sentences which you are serving to be considered. 10 When Wood CJ at CL imposed those sentences, as well as the sentence for the conviction of murder which is now quashed, he ordered the sentence for murder to commence from 27 March 2005. At the time he made comprehensive remarks including an analysis of subjective matters which are applicable to you. Those remarks remain germane and rather than repeat them I will note that they are to be regarded as incorporated herein. 11 You have been in continuous custody since your arrest in 2002. There has been some updating from the tender of records concerning your history in custody. This has not been particularly impressive and there are disciplinary matters on the record. I see nothing in that material which I conclude should be used to your advantage, nor are they matters which persuade me that I should increase any assessment of sentence in order to reflect them. 12 When sentencing your brother I commented about the apparent inappropriateness of extreme high risk status in custody after the conviction for murder of a police officer had been quashed. Again, I draw attention to what I then said without repeating those remarks. Mr Cook who appeared for you asked me to accept that after this sentence is imposed your classification is likely to be reviewed and I will make that assumption. 13 At the sentence hearing Mr Robert McEnallay, the father of Glenn McEnallay read a victim impact statement on his own behalf and on behalf of the family. It was a moving tribute and a salutary reminder about the senseless and needless killing of a courageous young officer. There should be a formal recognition in these remarks of what Mr McEnallay had to say and of the continuing suffering and sense of loss which the family feels. 14 Two express submissions by Mr Cook were, first, that for the offence of manslaughter you should receive no greater sentence than that imposed on your brother and, second, that the commencement date of any sentence should remain that which Wood CJ at CL had used when imposing the sentence for murder. That date, as I have said, is 27 March 2005, being some three years after you were first taken into custody. 15 That commencing date of course takes into account questions of cumulation and currency such as I have earlier mentioned in connection with the existing sentences. 16 I am assisted by the candour of the Crown Prosecutor who responded that there was nothing he wished to say about the submissions made by Mr Cook concerning the commencement date nor about parity of sentence with Motekiai Taufahema. 17 My ultimate responsibility for imposing sentence cannot be removed by consent of the advocates but the submission and the concession are congruent with what I regard as appropriate assessment of penalty and consequential orders. In making that determination I do not overlook the circumstance that there are sentences absorbed in your overall term for offences which were not charged against your brother. 18 John Taufahema, for the manslaughter of Glenn McEnallay, you are sentenced to imprisonment consisting of a non-parole period of 7 years dating from 27 March 2005 and expiring on 26 March 2012, with a balance term of 4 years dating from 27 March 2012. 19 The earliest date of eligibility for release to parole is specified as 26 March 2012. ********** 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.