R v TARAWA [1999] NSWSC 597

New South Wales Supreme Court CITATION : R v TARAWA [1999] NSWSC 597 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70211/96 HEARING DATE(S) : 11 June 1999 JUDGMENT DATE : 11 June 1999

REGINA (Crown)

PARTIES : v

James Hepeta TARAWA (Prisoner) JUDGMENT OF : Barr J at 1

COUNSEL : R Hoenig (Prisoner) K Roots (Crown) SOLICITORS : S Calomeris (Prisoner) CATCHWORDS : Criminal Law - sentencing - affray; Criminal Law - sentencing - breach of Community Service Order ACTS CITED : s 93C Crimes Act s 23, s 25(1)(c), s 25(4), s 26 Community Service Orders Act 1979 DECISION : See para 24.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

GRAHAM BARR J

Friday, 11 June 1999

70211/96 - REGINA v James Hepeta TARAWA

SENTENCE 1 HIS HONOUR: The prisoner, James Hepeta Tarawa, pleaded guilty to a charge of affray contrary to s 93C of the Crimes Act. 2 On 7 November 1997, Acting Justice Howie ordered him to perform 200 hours' community service comprising of 150 hours of community service work and 50 hours of attendance at the Pendle Hill Attendance Centre. His Honour appointed a local court to be the supervising court. 3 The prisoner completed only 39 hours of the work component of the order, the last on 21 February 1998. He attended the Pendle Hill Attendance Centre for only 23 hours, the last occasion being on 4 May 1998. 4 On 17 November 1998 the prisoner was called up for breach of his Honour's order. He was arrested and taken before the magistrate at the supervising court. His breach of his Honour's order constituted an offence under s 23 of the Community Service Orders Act 1979, and the supervising court convicted him of that offence, and under the provisions under s 25(1)(c) of the Act committed the prisoner to be dealt with by this Court. The magistrate allowed him bail. 5 On 23 November 1998 the prisoner appeared before me unrepresented, and I adjourned the matter so that he could obtain legal advice and representation. I ordered his bail to continue. On the adjourned day, 7 December 1998, he did not appear and I stood the matter over to 10 December. He did not appear on that day and I revoked his bail and directed the issue of a warrant for his arrest. 6 The prisoner was arrested on 2 May 1999 and brought before the Court on 14 May 1999. On 14 May 1999 I adjourned the matter until today and at the request of his counsel, Mr Hoenig, requested the provision of a pre-sentence report dealing with the suitability of the prisoner to serve a community service order. 7 Under s 25(4) of the Act, the powers of this Court are that (a) without prejudice to the continuation in force of the order, impose on the person a fine not exceeding 2.5 penalty units; (b) deal with the person, for the offence in respect of which the order was made, in any manner in which the person could have been dealt with for that offence by that court if it had not made the order and, unless the order has ceased to be in force, revoke the order; or (c) take no action. 8 By s 26, if this Court imposes a sentence for the offence in respect of which the community service order was made, it must take into account the fact that the order was made and anything done under the order. 9 The prisoner's breach of the order was so serious that I consider it inappropriate for the Court to take no action. His attention to his obligations under the order was sporadic. Ten letters had to be sent to him over the period from November 1997 to May 1998, accompanied by a number of oral warnings by staff of the attendance centre. 10 The prisoner said to the author of the pre-sentence report that he failed to complete his obligations under the order because of his separation from his de facto wife and a subsequent period of instability in his living circumstances. However, he was unable to explain to the author why he lost contact with the Probation and Parole Service and why he failed to discuss these matters with his community service officer or his community service attendance co-ordinator. 11 Evidence has been given this morning by the prisoner and by his de facto wife, Miss Saliba, which shows that during the three month period beginning some weeks before Christmas 1998 and ending in February or March this year, the prisoner was absent from his home, and I accept that the effect of the stresses of life upon him at that time were such that he could not give adequate attention to the ordinary obligations of life, let alone the special obligations imposed by the order of his Honour. 12 The charge of affray for which the prisoner was sentenced by his Honour arose out of a serious brawl which occurred between him and friends of his, and a larger group of young Aboriginal men outside the service station in suburban Sydney. The brawl led on to a second more serious incident between the same groups. In that incident one man died and another was very badly hurt, but as his Honour made clear, the prisoner was not to be sentenced for anything that happened in the second incident. The affray with which his Honour was concerned occurred when the prisoner and his friends went to a garage to buy cigarettes. The prisoner waited in the car and two of his friends went inside. Aboriginal young men were there and an altercation took place and an assault. The prisoner was not a party to that incident. All he saw was the continuation of the altercation and the assault when the parties to it came outside the service station to the place where the prisoner was. When he realised that there was trouble between the two groups, the prisoner got out of the car and joined his friends. 13 His Honour found that the prisoner was the first person to use actual physical violence outside the service station. Shortly after he had struck one of the Aboriginals, a brawl arose which gave rise to the charge of affray. The prisoner and about four of his colleagues were outnumbered by members of the opposing group. During the brawl, the fighting became heavier because weapons like sticks and a garbage can came to be used. During the brawl the prisoner went into the service station and asked for something to arm himself with. He was denied such assistance, so he left the service station, found himself a piece of wood, and returned to the fray. He and his colleagues were overwhelmed and he suffered minor injuries. That was the end of the affray, so far as concerned the criminal responsibility of the prisoner. 14 His Honour observed that as a general rule, a person coming before the Court convicted of conduct of this kind, might expect to receive a full time gaol sentence. However, his Honour took into account a number of features favouring the prisoner. Although he was the first to use actual violence, he was not responsible for the situation which gave rise to it. Others in his group started things going. Secondly, the prisoner was not responsible for the use of weapons in the fight. Although he armed himself, he did so only because others had already done so. Thirdly, he and members of his group had not visited the garage with the intent to engage anyone in a fight. Next, the prisoner had no history of violence. His Honour accepted that this was an isolated incident of violence on his part, and he became involved because his friends were involved. 15 Then there was the plea of guilty. Although it was offered at a late stage, after the empanelment of the jury, his Honour was satisfied that the prisoner had indicated a long time before that he would plead guilty to affray. Up until commencement of the trial, the Crown had been proceeding against the prisoner for much more serious charges arising out of the death and the injury which occurred in the second incident. 16 Next, his Honour took into account the youth of the prisoner, who was 21 years old at the time of the offence and 23 at the time of the sentence. 17 His Honour also took into account the prisoner was in a stable partnership with his partner, and that he accepted responsibility as a father. His Honour considered that the prisoner had a settled life. Subsequent events show that his Honour was seriously misled about that. 18 Then his Honour took into account some co-operation between the prisoner and the police. 19 In the pre-sentence report dated 17 June 1999 the prisoner's Probation and Parole officer considers that the prisoner does not require supervision by the Probation and Parole Service and that because of his previous unsatisfactory performance he is unsuitable to perform a further community service order. He is considered suitable for periodic detention. 20 The report of Anita Duffy, a consultant psychologist, has been put before the Court. Following tests, Miss Duffy concluded that the prisoner's psychological profile conformed with most types described by the designers of tests as - … tending under stress to go into a panic reaction which may lead to aggressive behaviour towards others or to themselves. They suffer from an immature personality and there is a lack of foresight. In a small sample surveyed, 90% had no further convictions after four years. 21 That summary seems remarkably accurate, considering the activity of the prisoner and the offence for which he was sentenced, and in his subsequent inappropriate reactions to stress, leading to his cessation of participation in his obligations under the community service order. 22 The report of Miss Duffy continues: His main mode of dealing with stress has been to internalise it, until he reaches a peak where he "explodes", often doing or saying things that he regrets later. This has led to arguments between himself and his girlfriend, and separations during this period which have further destabilised him. He has tended to react in a rather immature fashion, metaphorically throwing his hands in the air and ceasing his commitments. In this way his behaviours are short sighted and have repercussions which damage him in the long term. 23 Although the prisoner has been assessed as suitable to serve a period of periodic detention, I think that the author of the pre-sentence report might have come to a different view if he had seen the report to which I have just referred. The problem now is that the prisoner hopes to go back into a home situation with his girlfriend, with whom he has reconciled, and their two children. Stresses will come upon him again and when they do, they will affect his attitude to all his obligations, including any obligation he is put under by any order of this Court. I do not think, for that reason, and in view of the history of the matter, that he is a suitable subject for periodic detention. I think the appropriate order to make is a short term of full time detention. I note that the prisoner has been in custody since he was arrested on 2 May 1999. 24 Mr Tarawa, on the charge of affray I revoke the community service order. I sentence you to imprisonment for a fixed term of two months, commencing on 2 May 1999 and expiring on 1 July 1999. In imposing sentence, I take into account that the community service order was made and the work that you did under it and the attendances which you made under it. In relation to the separate offence constituted by your breach of the order, I take no action. **********