New South Wales District Court CITATION: R v MOTULIKI [2010] NSWDC 304 HEARING DATE(S): 10 December 2010 EX TEMPORE JUDGMENT DATE : 10 December 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment with a non-parole period of two years with a head sentence of four years. CATCHWORDS: CRIMINAL LAW - Sentence - Robbery - Assault - Conditional liberty at time of offending - Principle of totality PARTIES: The Crown Michael MOTULIKI FILE NUMBER(S): DC 2010/251638 SOLICITORS: Director of Public Prosecutions Valenti & Valenti Solicitors - Offender SENTENCE 1 HIS HONOUR: Michael Motuliki committed the offence, for which he must now be sentenced the day after he turned eighteen; that means that he is to be dealt with as an adult and serve the sentence of imprisonment I must impose, in an adult prison. 2 The period of custody that I must necessarily impose upon the offender will not be easy for him, nor will it be easy for his family; a loving family who have now suffered two awful losses. Firstly, the death of their oldest son, and now the incarceration of their middle son. In many respects, the matter before me today is terribly sad; but, ultimately it must be recognised that Mr Motuliki has committed a very serious offence. 3 There are a number of aggravated circumstances of which I will mention, and the result is that, even though it necessarily adds to the tragedy this family suffered, he must spend a considerable period of time in custody. 4 The offender went out with some friends of his to celebrate his eighteenth birthday. That celebration involved the consumption of drugs and alcohol. The following day, Saturday 24 July 2010, they recommenced consuming drugs and alcohol. The offender and his friend decided that they would get something to eat; they went to a hot bread shop in Bankstown; they asked for food. 5 When the cash register was opened after the offenders handed over payment, the offender decided that he would rob the shop attendant; a twenty-six year old young lady. The offender reached around and started to remove money from the cash register, using both his hands. The shop attendant screamed, "Help, robbery". There was another person in the shop, a twenty year-old man; he came out to assist. The offender saw him coming and punched him in the head using a closed fist, then continued to punch him in the head using both of his fists, hitting him in the mouth. The young man stumbled backwards, trying to cover up his face with his hands. 6 The offender did not stop; he continued to punch the young man numerous times until he stumbled out the front of the shop. The offender ran away and got on a bus; an eye-witness who saw what happened wrote down the details of the bus and contacted triple-0. 7 An ambulance was called to assist the young man. He had lost one of his upper-front teeth in the course of the violence that was inflicted upon him; he suffered a deep cut that required stitching. Two other teeth were loose as well; he needed treatment from a dentist to fix the two loose teeth and replace the missing tooth. The offender was arrested by police a few days later, on 28 July 2010. The offender admitted what he had done; he expressed his remorse when he spoke to police; he has been in custody since then. 8 I mentioned before that there are a number of aggravating circumstances for this offence. One in particular concerned the fact that the offender was on two forms of conditional liberty at the time ;a twelve-month probation order and an eight-month suspended control order, both imposed in the Parramatta Children's Court. These were for offences of a broadly similar nature to the offending for which the offender must now be sentenced. The offender is currently serving sentences of imprisonment as a result of the revocation of the probation order and suspended control order, such that he is not eligible to be released to parole until 28 August 2011. 9 I mentioned before that the offender was under the influence of alcohol and drugs at the time of this offence; but it could not be said that these caused him to act out-of-character, as his previous offences indicate, thus the benefit that the offender can claim for having being under the offence of illegal drugs and alcohol is limited indeed. 10 The offender gave evidence today and said that, at the time of his eighteenth birthday, he was depressed because his older brother was not with him to help him celebrate; that can easily be accepted. The tragic death of his older brother is, according to his father, who gave evidence today, and - this seems to be confirmed in the presentence report - what led to the offender, to use the colloquialism "going off the rails". It was after his brother was murdered the offender began drinking to excess, taking drugs and committing offences. There was a relatively-short period of offending, starting with the serious matters in October 2009; then one of the other offences, committed shortly before his eighteenth birthday, that being on 18 July 2010; and then this matter, committed, as I said, on 24 July 2010. This short period of offending suggests that he has good prospects of rehabilitation. 11 Part of his rehabilitation will be an important aspect of the sentence I will shortly impose upon him, personal deterrence. The offender needs to have brought it home to him in a very concrete way, that offences such as those he has committed, and, in particular, the one for which I must now sentence him, are very serious indeed. The maximum penalty of the offence committed by the offender is twenty-five years' imprisonment, reflecting the seriousness with which the legislature regards this sort of behaviour. It is rare indeed for an eighteen year-old to commit such serious offences; personal deterrence is particularly important, given the offender's recent lifestyle. 12 The offender is fortunate indeed to have the support of his family; both his parents are here in Court today, as well as two of his friends. There are, thus, as I said, good prospects for the offender's future, but it remains the case that he must be punished for what he has done. 13 The question of accumulation is fairly important; I will commence the sentence at the expiry of the existing non-parole period, so the sentence will start on 28 August 2011. But I have applied, of course, the principle of totality, so the sentence I am actually going to impose is less than it would otherwise have been. I am able to apply the principle of totality because of the helpful information provided to me by the Crown concerning the earlier offences. The sentence that I will announce is also less than it otherwise would have been, because of the offender's early plea of guilty. I have discounted the sentence, thus, by twenty-five per cent to reflect the utilitarian value of that plea. 14 There is much that is promising about the offender's future. He has had several positions of employment; he was in fact employed before he was arrested. He has plans to obtain his forklift licence in the future; his father is qualified in that area, and will obviously be able to assist. He is to take responsibility for his actions..(not transcribable).. reflection of the Parole Officer, his behaviour is a cowardly act. 15 There are clearly special circumstances in this case, most obviously his youth; the fact that this sentence will be accumulated on existing sentences; the need for the offender to deal with his drug and alcohol abuse, and also the need for counselling concerning the death of his older brother. His mother gave evidence that, after the offender's older brother was murdered, the family was offered counselling. His mother accepted that offer, the offender did not - regarding himself as strong enough to cope; in hindsight it may have been a mistake. Given the age of the offender the mistake is quite understandable. 16 So the non-parole period that I will shortly announce has been reduced to what it would otherwise have been, to allow for an extended period of supervision on parole, during which counselling can be offered to the offender. It remains the case, however, that even an offender as young as the prisoner needs to be punished, and significantly so for a very serious offence. The violence in this case was ongoing, it was not simply a case of punching the young man and running away; there were numerous blows, leading to a significant injury, all in the course of the offending, escaping from ..(not transcribable).. robbery at a time when he had been extended leniency by the Children's Court, with already similar offences. Thus the period of imprisonment that I will now announce is, in some respects, a lengthy one but is the least which, in my opinion, properly reflects the circumstances of this case. 17 The offender is sentenced to imprisonment with a non-parole period of two years to commence on 28 August 2011, a head sentence of four years. The non-parole period will expire on 27 August 2013, on which day the offender is eligible to be released to parole. ********** 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.