R v. Taufahema [2007] NSWSC 959

New South Wales Supreme Court

CITATION : R v. Taufahema [2007] NSWSC 959

HEARING DATE(S) : 16/08/07

JUDGMENT DATE : 31 August 2007

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : Sentence imposed (see pars 44, 45)

CATCHWORDS : CRIMINAL LAW - Manslaughter - Sentence

PARTIES : Regina v Motekiai Taufahema

FILE NUMBER(S) : SC 70235/2002

COUNSEL : M. Grogan (Crown) T. Game SC with S. Beckett (Prisoner)

SOLICITORS : Solicitor Public Prosecutions (Crown) Catherine Hunter (Prisoner)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 31 August 2007

70235/2002 - REGINA v MOTEKIAI TAUFAHEMA

SENTENCE 1 HIS HONOUR: Motekiai Taufahema, you appear for sentence after pleading guilty upon arraignment to the crime of manslaughter of Glenn McEnallay. 2 These remarks are primarily directed to you in order to provide an exposition of the reasons for the sentence which will be imposed upon you but it is also desirable to express some matters on public record and, to an extent, this will require some references to legal proceedings and their consequences and to some facts, with which you are, no doubt, already quite familiar. 3 Senior Constable McEnallay was shot by Sione Penisini on 27 March 2002 and died as a result of his wounds several days later. You were one of the four occupants of a reportedly stolen motor car which Senior Constable McEnallay approached in the course of his duty as a highway patrol officer. The four of you were respectively charged with murder and various other offences. I note that the proceedings against Penisini, Meli Lagi and your brother John (Sione) Taufahema took place before Wood CJ at CL. 4 Upon arraignment on 21 March 2003 Penisini pleaded guilty to murdering Senior Constable McEnallay as well as a charge of using a firearm whilst not being authorized to do so. On 13 August 2003 he pleaded guilty to a further charge which can shortly be described as attempted car jacking. On 2 October 2003 for those three offences his Honour sentenced Penisini to imprisonment for thirty four years dating from 27 March 2004 with a non-parole period of twenty three years, and fixed terms of five years and six years imprisonment dating from 27 March 2002. An appeal by the Crown asserting the inadequacy of the sentence for murder was dismissed. 5 Lagi was found not guilty at trial of the murder of Senior Constable McEnallay but guilty of using an offensive weapon in company with intent to prevent lawful arrest and he pleaded guilty to a charge of possessing a firearm without authority. For those two offences his Honour sentenced Lagi to imprisonment for ten years with a non-parole period of six years dating from 3 April 2005 and to imprisonment for four years dating from the same date. The commencement date was established by reason of a sentence being served by Lagi for an unrelated offence which had commenced on 21 May 2002. 6 John Taufahema was found guilty, after trial, of the murder of Senior Constable McEnallay. He had pleaded guilty at the commencement of trial to using an offensive weapon in company with intent to prevent lawful apprehension, attempted car jacking (as in the case of Penisini) and using a firearm without authority. Wood CJ at CL sentenced him for these four offences to imprisonment for twenty one years dating from 27 March 2005 with a non-parole period of fourteen years and fixed terms of imprisonment of seven years dating from 27 March 2004 and six years and five years dating from 27 March 2002. By order of the Court of Criminal Appeal on 16 February 2007, the conviction and sentence for murder were quashed and a new trial ordered on that count. Upon further arraignment John Taufahema pleaded not guilty to murder but guilty of manslaughter, and the Crown later notified its acceptance to that plea of guilty in satisfaction of the indictment. John Taufahema is remanded for a sentencing hearing on 30 November next. 7 You stood trial before Sully J and a jury and were convicted on counts in the indictment charging the murder of Senior Constable McEnallay and unlawful possession of a firearm. On 10 September 2004 his Honour sentenced you for these two offences to imprisonment for twenty one years dating from 26 March 2004 with a non-parole period of fourteen years and a fixed term of imprisonment of five years dating from 27 March 2002. You have served the latter sentence in full and it is now expired. 8 On 8 May 2006 the Court of Criminal Appeal upheld your appeal and quashed your conviction and sentence on the count of murder and ordered the entry of a judgment of acquittal on that count. The Crown was granted special leave to appeal to the High Court of Australia against that judgment and on 21 March 2007 that Court, by majority, upheld the appeal, set aside the order of the Court of Criminal Appeal and in lieu of the verdict and judgment of acquittal, ordered that there be a new trial. 9 On 6 July 2007 the Crown presented an indictment charging you with the manslaughter of Senior Constable McEnallay and to that indictment you have pleaded guilty and I have directed the entry of a judgment of conviction of that crime upon the indictment. It is for that offence of manslaughter, and no other, that it is now my duty to pass sentence upon you. It is required for me to find facts not inconsistent with your guilt of the offence of manslaughter for the purpose of sentence. There has been an agreed statement of facts which, in accordance with recognized practice, articulates the relevant Crown allegations and your acceptance of them. I act upon those facts as applicable findings for the purpose of sentence. 10 They are: "1. On 27 March 2002 Motekiai Taufahema, his brother John 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. 2. The accused drove the commodore from Bankstown to his flat in Little Bay. He was at that time unlicensed. 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 inquiries and established that the vehicle had been reported stolen. 3. The accused 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 Matraville on 14 March 2002. There is no evidence that the accused was involved in the theft. 4. 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. The accused then accelerated and made a sharp right hand turn into Grace Campbell Crescent. At around 5.51pm 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. 5. 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 other occupants ran from the vehicle. At that time each was armed with a loaded revolver. 6. The accused separated from the others and 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 later and the revolver was found where he had hidden it. 8. John Taufahema and Penisini were arrested not far from the scene of the shooting. Lagi escaped but was arrested a few days later." 11 No doubt having due regard to the history of litigation regarding the charges against you, there has also been included in the document, which has been signed by you, a statement of the basis of your liability for the crime of manslaughter. It is in these terms: "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." 12 Now is not the occasion for a dissertation upon the law of liability for complicity in a joint criminal enterprise, but two things should be made explicit. It is not, and never has been, suggested that any physical act by you constituted the actual homicide and, second, the level of your culpability in terms of your mental state is to be gauged against the assertion, which you admit, that you contemplated the possibility that one of the other occupants of the car might discharge a firearm but not that he might do so while at the time intending to kill or cause grievous bodily harm. 13 So to say is not to minimize your culpability for the crime, nor to ignore that death in fact resulted but it is to define the context in which that culpability should be judged. 14 There are other factors which I take into account which are germane to assessment of the level of seriousness of your offence and what needs to be particularly reflected in your sentence. 15 Of crucial importance is the circumstance that the victim was a police officer acting in the pursuit of his duties. It has been said that a need to include a substantial element of general deterrence in a sentence for such an offence is compellingly obvious. The community is dependent upon efficient, and, as was Senior Constable McEnallay, courageous police officers for its protection and it is my duty to make clear that the Courts support them by condign punishment of those who participate in offering violence to them. 16 It is submitted by the Crown that your offence is further aggravated by the actual use of one of the four loaded pistols which were in the possession of the occupants of the stolen car. That is undoubtedly a serious circumstance but it is necessary to ensure that there is no double counting of the elements of your culpability. It is an essential ingredient of the liability which you bear for the crime that one of those pistols was in fact used and that you foresaw that it might be used. Obviously the sentence should contain an element of deterrence against others who might be tempted to engage in unlawful activity concerning firearms particularly concealable weapons such as pistols, but that is not to find that there should be some further enhancement of the assessment of sentence which is otherwise appropriate. 17 You were on parole at the time of committing this offence. It scarcely needs to be said that such a circumstance is a matter of aggravation in that at the very least it displays a lack of appreciation of the conditional liberty which had previously been granted to you and it is in itself a contraindication against reposing future trust in you. 18 As is self evident from what I have just said, you have a record of convictions otherwise. Your date of birth is 7 June 1976. Your offending started at about the age of sixteen and involved multiple appearances in the Children's Court. You were just eighteen when first imprisoned by the District Court for offences of stealing motor vehicles, assault and robbery. In December 1999 you were again sentenced in the District Court to imprisonment for assault occasioning actual bodily harm. It was during the currency of parole for these offences that the present crime was committed. In the span of time between the sentences imposed in the District Court you were also sentenced at Burwood Local Court for offences including being armed with intent to commit an indictable offence. 19 That history of convictions operates to deprive you of some of the leniency to which you might otherwise have a claim if the current offence was an isolated act of criminality. Clearly it was not. 20 On 27 May 2005 you were sentenced at Campbelltown District Court for offences committed prior to 14 November 2001. At the time of that imposition you were, of course in custody serving the sentences imposed by Sully J. The fixed term of five years commencing on 27 March 2002 for possession of a firearm was not the subject of an appeal either by you or by the Crown and the sentence which his Honour imposed for murder was not quashed until 8 May 2006. I shall return to refer to the May 2005 sentences. 21 I turn now to some matters which have been raised on your behalf. 22 You are thirty one years of age. You have been in a de facto relationship with Ms Langbien since 1996 and are the father of a daughter who was born after your arrest in this matter. I note the content of Ms Langbien's affidavit sworn 15 August 2007 which was not the subject of challenge, and her statement that she looks forward to your release when you are able to live together as a family. I also acknowledge the affidavit evidence of your father Maunaloa Taufahema recording that he visits you and that you will have the support of your family when you are released. I note that his statement is corroborated in the Corrective Services records which have been exhibited to the affidavit of Miss Hunter sworn 14 August 2007 which includes "good family support from ….receives regular visits". The names of the visitors have obviously been deleted from the document which was produced pursuant to Freedom of Information request. 23 From the same sources I observe notations that you are recorded as being compliant with unit routine and that you cause no problem to staff. This material shows a potential for rehabilitation which I accept has been demonstrated. 24 The documentation to which I have referred was made, it seems, to a large extent prior to the murder conviction being quashed in May 2006. The letter from the Serious Offenders Review Council which is exhibited to Miss Hunter's affidavit of 16 August 2007 does not inform the basis upon which the Commissioner has designated you as EHR (Extreme High Risk). In particular it does not specify that the reason for classification is that you have been assessed as being an extreme danger to other people or that you are an extreme threat to good order and security. The records to which I have referred would tend to show the contrary. 25 It appears that the only one of the twenty indicators used by the High Security Management Committee which would have applied to you prior to May 2006 was indicator number 9, namely that you had been convicted of the murder of a law enforcement official. Conviction for murder was, as I have said, quashed and you are now convicted of manslaughter and not of murder. 26 This is of some significance, as your EHR status has effects which make your custody more onerous than it would be if you were kept in the general prison population without that classification. No challenge was offered to your affidavit evidence that you are, in that circumstance, locked in your cell each day from 2.30 pm until 8.30 am the following day and are subjected to particular restraint when in transit. You are inhibited from education and a variety of otherwise available work. I observe that the Department's records also state that you cope well with regular moves which are apparently imposed upon EHR inmates and that you do so without incident. 27 The problem that I perceive is that it is received sentencing doctrine that a judge may take into account in mitigation probable conditions of incarceration which are likely to be more onerous than would generally be the case, but the attempt by your solicitors to extract relevant information from the Serious Offenders Review Council produced a response which seems focussed upon delineating the criteria but does not inform whether any identified criterion, particularly after you ceased to be convicted of the murder of a law enforcement officer, has been applied to you. 28 All the information made available to me does not suggest that you now fulfil any of the criteria of the twenty indicators supplied, so as to provoke your being designated EHR. I recognize that a matter of mitigation needs only to be proved on the balance of probabilities but as I expect that in due course, and I would hope promptly, your status should be reviewed and I consider it improbable that EHR classification will remain once it is appreciated that you do not fulfil the criterion of indicator 9, I anticipate that the situation will change. 29 Up until 2006 it was, upon the published criteria, appropriate that you be so classified and I take into account that although since then you probably should not have been subjected to the conditions applicable to EHR status you were so classified, and, as well, I take into account the possibility that, despite your not meeting the criterion in indicator 9, the Commissioner, for some reason, which is not apparent to me, may continue the designation in the future. 30 I have a report from Dr Christopher Lennings who saw and assessed you as recently as the first of this month. I do not need to summarize what can be read there. I accept generally the doctor's observations. I have been particularly impressed by the recording of your statements to him revealing your thoughts about the devastating effects of the killing on Senior Constable McEnallay's family. I have frequently enough encountered offenders who describe at length the effect of their crime on themselves to say that it is sufficiently unusual to observe a lengthy description of thought which shows an appreciation of the effect of a crime upon others, to persuade me that, in distinction from those others, you have a genuine remorse for your participation in the senseless actions which culminated in the Constable's death. 31 Your plea of guilty is a factor contributing to a finding that you are contrite. The order of the High Court was made on 21 March 2007. You offered to plead guilty to manslaughter in the following month and the Crown acceptance was formalised by the indictment presented on 5 July. A plea of guilty gives rise to consideration of mitigation of penalty, both pursuant to statute and the common law. A significant factor in the assessment of any element of mitigation for the practical benefits of the administration of justice is the promptness of the plea. It was not suggested that the Crown would have accepted a plea of guilty to manslaughter prior to the High Court decision and I would classify your plea, in the unusual circumstances of this case wherein you stood acquitted between the determination of the High Court and the orders made by the Court of Criminal Appeal, as having been made at the earliest opportunity. 32 You were the respondent to the successful Crown appeal, in your case an appeal against acquittal, and that should be taken into account because you have been exposed to what is usually called, if slightly inaccurately, a double jeopardy. 33 As the matter was raised by senior counsel on your behalf I should record that I do not find any useful assistance in referring to the sentences imposed upon Penisini and Lagi who were convicted of different offences. 34 The applicable sentencing legislation provides a proportion to be applied between non-parole period and balance term which can be departed from when special circumstances are found. The designation of a prisoner as EHR is such a circumstance, although for reasons earlier discussed, I would see this as only a possibility in the future. Nevertheless, as Dr Lennings wrote, significant rehabilitation effort will be required and, adding to the possibility that EHR status will not be revoked, for those reasons I find departure from the statutory formula should occur. I have been supplied with sentencing statistics compiled by the Judicial Commission. Manslaughter is the offence which has the widest span of culpability for a crime within its compass. It can range from death resulting from negligence to intentional killing reduced to manslaughter by reason of provocation or mental state. The statistics do not reveal whether any case therein involved the considerable aggravating factor that the victim was a policeman pursuing his duty at the time. 35 It is self evident that your culpability for manslaughter should be reflected in a lesser sentence than that imposed upon you for the more serious crime of murder. 36 Before turning to deal with the structuring and imposition of sentence I should acknowledge the reading of a victim impact statement by Senior Constable McEnallay's father on his own behalf and on behalf of other family members. Their suffering and continuing feelings of loss do not increase any sentence which it is otherwise appropriate to impose upon you but it is a reminder to the Court, to you and to the public generally, of their grief and the senselessness of a brave police officer's untimely death. 37 I have already stated the agreed basis of your liability for manslaughter and I have referred to the joint criminal enterprise upon which you concede that you were embarked. It is not to put aside the responsibility deriving from participation in the joint enterprise nor to ignore the fatal outcome to recount in summary what your particular actions were. You were the driver of the reportedly stolen car and Lagi was in the front seat with you. Penisini, who fired the fatal shots, had disembarked from the back seat. You were the last to exit the car. You ran from the scene in a different direction from the other previous occupants of the car. You attempted to hide the pistol with which you were armed but were arrested shortly afterwards. There is no allegation that you brandished your pistol, and testing found no residue on it after it had been seized, hence it was demonstrated that it had not been fired. 38 The only sentence which I impose upon you is for the crime of manslaughter but it is necessary to take into account service of some associated and unassociated sentences. There is a principle of totality to be borne in mind. 39 As already stated, you have served a sentence of five years imprisonment between the date of your arrest on 27 March 2002 and 26 March 2007 for possessing an unlawful firearm. When you were sentenced by Sully J for murder the effect of his orders as to concurrency was that you would serve two years exclusively for the firearms offence and would serve the balance of three years for that offence whilst serving the sentence for your then conviction of murder. In addition between 28 March 2002 and 25 May 2002 you served the balance of parole for the offence of assault occasioning actual bodily harm in respect of which you were at conditional liberty at the time of the offence which resulted in the loss of Senior Constable McEnallay's life. 40 However, as I indicated above, subsequently, on 27 May 2005 you were sentenced at Campbelltown District Court on counts of assaulting a police officer in the execution of his duty and affray. These offences were charged on 14 November 2001 and clearly preceded the offence of manslaughter for which you now stand for sentence. However, the effective sentence for those offences was a head sentence of three years and four months imprisonment with a non-parole period of two years and six months each dating from 27 May 2005. Thus that sentence was served concurrently with the sentence of unlawful possession of a firearm between 27 May 2005 up until 26 March 2007 as well as, until 8 May 2006, the now quashed sentence for murder. 41 Taking into account those sentences, except of course the imposition by Sully J for the offence of murder, which is no longer charged against you, I have determined a starting date for the offence of manslaughter of 27 March 2005. 42 Save a discount from sentence for what is conventionally referred to as the utilitarian value of your prompt plea of guilty once it was available to you to plead to the offence of manslaughter, I would, taking into account matters of aggravation and mitigation, have assessed a sentence for your offence of manslaughter of thirteen years and six months. Giving credit for the utilitarian value of the plea I would reduce that assessment to eleven years imprisonment. Application of the statutory formula would produce a non-parole period of eight years and three months with a balance term of two years and nine months. By reason of my finding of special circumstances I have assessed a non-parole period of seven years. 43 I have earlier mentioned the principle of totality. It is always appropriate to consider the overall effect of multiple impositions. In a global sense therefore I note that for the possession of the unlawful firearm, the service of the balance of parole before mentioned, the offences dealt with at Campbelltown in 2005 and the sentence for manslaughter which I am about to impose, you will be in custody for a minimum of ten years after your arrest on 27 March 2002, after which it is possible that you may be again released to parole. Whether you are so released is a decision for the relevant Parole Board Authority. 44 Motekiai Taufahema, for the manslaughter of Glenn McEnallay, you are sentenced to imprisonment consisting of a non-parole period of seven years dating from 27 March 2005 and expiring on 26 March 2012 with a balance term of four years dating from 27 March 2012. 45 The earliest date of eligibility for your release to parole is specified as 26 March 2012. **********