Regina v Taufahema [2004] NSWSC 833

New South Wales Supreme Court

CITATION : Regina v Taufahema [2004] NSWSC 833 HEARING DATE(S) : 23 April 2004 26 August 2004 JUDGMENT DATE : 10 September 2004

JUDGMENT OF : Sully J at 1 DECISION : Effective head sentence of 23 years with non-parole period of 16 years

Crimes Act 1900 (NSW) LEGISLATION CITED : Firearms Act 1996 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) CASES CITED : Lowe v The Queen 1984 154 CLR 606 PARTIES : Regina Motekiai Taufahema FILE NUMBER(S) : SC 70235/02 COUNSEL : P. Barrett - Crown C. McNamara - Prisoner SOLICITORS : S. Kavanagh - Crown Van Houten Solicitors - Prisoner

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DIVISION

SULLY J

10 September 2004

70235/02 – REGINA v MOTEKIAI TAUFAHEMA

ON SENTENCE 1 SULLY J: On 10 March 2004 the prisoner, Motekiai Taufahema, was presented for trial in this Court upon an indictment containing three counts. The first count charged the prisoner with having murdered one Glen McEnallay. The second count charged, in the alternative to the first count, that the prisoner, whilst in the company of three other named men, had shot at Glen McEnallay with intent to avoid the lawful apprehension of the prisoner himself and of the other three men. The third count charged the prisoner with the unlawful possession of a firearm, namely a Smith and Wesson .357 revolver. 2 Prior to the commencement of the addresses of counsel there was discussion concerning the retaining, as part of the indictment, of Count 2. Following that discussion, the Crown Prosecutor elected not to proceed upon Count 2; so that only Counts 1 and 3 in the indictment as originally presented went to the jury. 3 The prisoner, when arraigned, pleaded not guilty to each count in the indictment. On 1 April 2004 the jury found him guilty as charged upon Counts 1 and 3 in the indictment. He was, thereupon, formally convicted; his antecedents were tendered; and the proceedings on sentence were adjourned part-heard until 23 April. On that day further evidence was received on the matter of sentence, and the sentence proceedings were adjourned part-heard to a date to be fixed in the week of 23 August last. That further adjournment was granted upon the application of the prisoner, and for the purpose of the obtaining of an appropriate psychiatric report about the prisoner. In the event, funding was not available for the obtaining of such a psychiatric report; and the part-heard sentence proceedings were concluded, accordingly, on 26 August last. 4 The offence charged in Count 1 of the indictment contravenes section 18 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for the term of the offender's natural life. The offence of unlawful possession of a firearm as charged in Count 3 of the indictment contravenes section 7(1) of the Firearms Act 1996 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 5 The relevant facts are as follows. 6 On 27 March 2002 two off-duty police officers, who were then travelling together in a privately owned motor vehicle, and were proceeding east on Botany Road at Matraville, noticed near McAuley Street a dark green Commodore motor vehicle travelling at a high speed in the same direction as their own. The Commodore went past them and they noted its registration number which was AJK-32M. The Commodore overtook them and proceeded on its way in a very erratic and potentially dangerous fashion. The two off-duty officers pursued the Commodore for some time; but eventually they lost contact with it. They resolved to report what they had seen to the first available on-duty police officer. 7 That proved to be the late Senior Constable McEnallay. Constable McEnallay, having received the report of his off-duty colleagues, did a transport check on his police vehicle radio. The information communicated back to Constable McEnallay was that the particular Commodore had been reported to the police as having been stolen. 8 Constable McEnallay continued thereafter his own normal patrol. During the course of that patrol he came upon the green Commodore. He began to follow the vehicle, calling as he did so for police back-up in order to intercept and stop the Commodore. The Commodore accelerated, speeding away from Constable McEnallay who continued in pursuit of that vehicle. It was uncontroversial at the trial that the Commodore was driven at all material times by the present prisoner. It was, also, uncontroversial that at all material times there were three other men in the Commodore. One was a man named Meli Lagi who was seated beside the prisoner. A second was the prisoner's own brother, Sione or John Taufahema, who was seated behind the prisoner. The third passenger was Sione Penisini who was seated behind Meli Lagi. 9 The whole of the evidence at trial establishes beyond the slightest doubt that at all material times there were four loaded firearms being carried in the Commodore. The evidence does not disclose precisely where any one of the four firearms was located at any particular time during the relevant course of events. 10 It is in my opinion incontestable on a fair view of the whole of the evidence at trial that the prisoner became aware that he was in fact being pursued by a police officer; and that he thereupon set out with the knowledge and agreement of his three passengers to avoid interception by the police. It was a matter of real practical moment to all of the occupants of the Commodore that they avoid any lawful apprehension, because all four of them were at the time at liberty on parole. 11 The Commodore sped along, with Constable McEnallay in hot pursuit, until it reached the intersection of a street called Grace Campbell Crescent. At that intersection, the prisoner attempted to make a right hand turn into Grace Campbell Crescent. His manner of making the turn was such that the front wheel of the Commodore collided with one of the gutters of Grace Campbell Crescent. That impact caused a buckling of one of the Commodore's front wheels, with the result that the Commodore could not be driven further. 12 As the Commodore stood immobilised in Grace Campbell Crescent, Constable McEnallay himself turned into that street and brought his police vehicle to a halt behind and close to the disabled Commodore. The man Penisini thereupon got out of the Commodore; pointed a loaded revolver directly at Constable McEnallay who was then seated behind the driving wheel of the police vehicle; and fired in rapid succession five shots. The shots were fired, effectively, at point-blank range; and Constable McEnallay was fatally wounded, dying shortly thereafter. 13 The four occupants of the Commodore immediately decamped from the scene of the shooting. Each of the four, when he thus decamped, was carrying a firearm. The relevant evidence at trial established beyond any doubt that the firearms were stolen firearms; although the evidence did not establish who had actually carried out the initial theft of the weapons. 14 Other police officers arrived in Grace Campbell Crescent very shortly after the shooting of Constable McEnallay. The four occupants of the Commodore were variously pursued and tracked down by the police. 15 The Crown case on Count 1 was left to the jury upon the basis that any criminal responsibility on the part of the prisoner, who undoubtedly fired none of the shots which killed Constable McEnallay, depended upon the doctrine of joint criminal enterprise. The jury was instructed that, before the prisoner could be found guilty of the murder of Constable McEnallay, as charged in Count 1 of the indictment, the jury had to be satisfied beyond reasonable doubt of four things, namely: