REGINA v POIHIPI [2001] NSWCCA 306

New South Wales Court of Criminal Appeal

CITATION : REGINA v POIHIPI [2001] NSWCCA 306 FILE NUMBER(S) : CCA 60022/01 HEARING DATE(S) : 2 August 2001 JUDGMENT DATE : 16 August 2001

PARTIES : REGINA v Phillip POIHIPI JUDGMENT OF : Mason P at 1; Sully J at 35; Newman AJ at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3209 LOWER COURT JUDICIAL Moore DCJ OFFICER :

COUNSEL : Crown: M C Marien Respondent: J Stratton SOLICITORS : Crown Prosecutor: S E O'Connor Respondent: Nikola Velcic & Associates CATCHWORDS : Crown Appeal against sentence - robbery in company - attempted robbery - assault occasioning actual bodily harm - non-parole period 5 months 2 days - special circumstances - respondent permitted to return to New Zealand with mother - term of imprisonment manifestly inadequate - R v Henry (1999) 46 NSWLR 346 - trial judge erred in failing to address each indictment separately - subjective features make it inappropriate to impose further custodial sentence. DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60022/01 MASON P SULLY J NEWMAN AJ

Thursday 16 August 2001

REGINA v Phillip POIHIPI

JUDGMENT

1 MASON P: Pursuant to s5D of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against sentences imposed by Judge Moore at the Campbelltown District Court. 2 On 26 October 2000 the respondent pleaded guilty in the Local Court to eight counts of robbery in company, one count of attempted robbery in company and one count of assault occasioning actual bodily harm. The maximum penalty for each count of robbery in company and the count of attempted robbery in company is twenty years imprisonment (Crimes Act 1900, s97(1)). The maximum penalty for the count of assault occasioning actual bodily harm is five years imprisonment (Crimes Act 1900, s59). 3 The respondent adhered to his pleas when he appeared in the District Court on 30 November 2000. He was sentenced on each matter to imprisonment for three years to commence on 29 June 2000. (29 June 2000 was the day after the respondent was arrested. He had been in custody for the five months that elapsed until Judge Moore imposed the sentence under appeal.) 4 Judge Moore specified a non-parole period of five months and two days commencing on 29 June 2000 and accordingly directed that the respondent be released forthwith. He also directed that the respondent's release to parole be in accordance with the standard conditions of parole and the supervision conditions, together with a special condition that he be permitted to return to New Zealand to reside with his mother. 5 Between 25 and 28 June 2000 the respondent and two other young men, Karl Cabrera and Daniel Johnson, committed a series of robberies upon young persons in public places in or near shopping centres in Liverpool. Five separate incidents were involved in the matters to which the respondent pleaded guilty. The respondent was 19 at the time of the offences. 6 The modus operandi was similar in each case. The victims were confronted by the three offenders; there was violence and/or threats of violence; and valuable property of the victims taken from them. 7 The sentencing judge's summary of the offences and the role of the respondent in them was in the following terms: The robbery in company matters were virtually identical. The three young men, the other two being aged eighteen, I am informed, would approach other young people in the vicinity of a shopping centre on all occasions except one where the offence was committed in the vicinity of a play station. By threats they robbed the young men, normally of their mobile telephone, and on other occasions of any other valuables they had, being typically a small amount of money or a watch on one occasion. The role of the offender was to provide an appearance of danger which would force the victims to part with their property. He is a very big and strongly built man. It was his other offenders who, when there was violence, perpetrated the violence itself. But he acknowledged in his record of interview, which was a very frank one, that his part in the robberies was an important one because of his physical appearance. 8 The assault occasioning actual bodily harm to which the respondent pleaded guilty was committed by the co-offender Cabrera who hit one of the victims, Karl Miskle over the head with a baton. The Judge found that the respondent: "was present and involved in that episode". 9 One of the complaints made by the Crown in the appeal is that the judge's summary of the respondent's involvement overlooked critical facts and underplayed the respondent's part in the robberies. There is substance in this complaint. 10 It would appear that the moving force in the gang was Cabrera. Usually he took the leading role in the "shake down" of the frightened victims. Fear and submission came from him threatening to stab the victims (although a knife was never produced). 11 There was also evidence that the respondent's intellectual functioning was assessed at the upper end of the mildly intellectual handicapped range. His full scale IQ of 74 was better than that for only about 4% of people of his age. This reinforces the overall picture that he was being led by Cabrera to a significant degree. 12 Nevertheless, the respondent did play an active and deliberate role in the robberies and his participation was more significant than suggested in the remarks on sentence. 13 In his ERISP the respondent told the police that his co-offenders committed the offences to get drugs but that he was not on drugs anymore (Q/A 540-551). He described his motive for participating in the robberies as "just to look cool in front of me mates… went to do it for a buzz, too" (Q/A 125-6). 14 The respondent is of Pacific Islander appearance, 6ft 3-4in in height and he weighs approximately 120 kilos. His principal role was correctly described by Judge Moore as that of providing an appearance of danger designed to force victims to part with their property. Nevertheless he did more if required. It was not correct to say that "it was his other offenders who, when there was violence, perpetrated the violence itself" (passage set out above). Written statements of the victims were tendered by consent. The victim Puglia refers to the "Islander guy" making demands such as "empty your pockets" and holding one of the victims by the jumper while brandishing his fist in a threatening way. The victim Tu said that "the Islander guy grabbed Sab by the front of his shirt and said, 'I'll throw you through that window behind you'". The victim Elloun states that the male of islander appearance said "give me your money" after having pushed him up against a wall. The respondent brandished his hands in a fist as he confronted the victim Posselt. 15 In his ERISP the respondent also admitted having "dragged [Miskle] outside …. duked it out, outside …. I mean, punch, a punch up, we had a punch up outside." (Q/A 345-7). He admitted punching Miskle "maybe four or five times" (Q/A 409). 16 To put it at its lowest, the sentencing judge was correct to observe that the objective features of the case were grave and that the special circumstances were not such as would justify anything other than a full-time prison sentence. 17 Nevertheless, the special circumstances found by his Honour were held to be such that it was appropriate that he should be released forthwith into the effective custody of his mother so that he could return to New Zealand forthwith and reside with her for the balance of the sentence subject to the standard conditions of parole supervision. 18 The respondent's mother gave evidence in the sentencing proceedings. She and two other family members had flown to Sydney for the sentencing proceedings. Her son had lived with her in New Zealand until difficult work conditions brought him to Australia. He initially resided with his aunt and had a job in Sydney for a time. 19 Mrs Poihipi said that the respondent had expressed fears as to his safety in gaol custody. 20 Mrs Poihipi who had visited her son in gaol also said that: … he's a changed person and is now a Christian which is our foundation as well. He's made a great change and I am thankful for this much. 21 She told Judge Moore that she had engaged an organisation in New Zealand that was willing to employ her son and that when he returned to reside with her she would enforce strict rules in her household. None of this evidence was challenged in cross-examination. 22 There were indeed very significant subjective features. 23 When arrested, the respondent made full confession. He was also held entitled to some measure of additional discount having regard to the principles discussed in R v Ellis (1986) 6 NSWLR 603 because he volunteered information concerning some of the crimes which was not in witness statements which the police then had at hand. The sentencing judge held that a discount of 35% was appropriate for these two features and the Crown does not suggest error in this regard. 24 The judge recorded that the respondent had only one previous conviction, a small larceny matter in the Local Court for which he had been fined $350. His Honour apparently overlooked the fact that the pre-sentence report referred to a further matter that occurred in New Zealand when he was 15. He had been convicted of car theft, robbery and fraud and ordered to perform community service work. 25 His Honour also had regard to his finding, properly made, that this was a man of very limited intellect who had fallen into bad company during the four months in which he had come to live in Sydney away from his home in New Zealand. He had been manipulated by his "new found friends". This is further supported by the evidence of a clinical psychologist, Mr Taylor, who concluded that the respondent is mildly intellectually handicapped and a person who is easily led. Mr Taylor was also satisfied that the respondent had genuine remorse and that he exhibited a high level of anger and hostility towards himself for having committed the offences. Such contrition is relevant even if (as the Crown suggests) it is belated. 26 Notwithstanding the ERISP answers, the judge was satisfied that the respondent committed the offences because he needed money for his own drug abuse. He observed that that did not operate to reduce the sentence in any way, although he considered that there was a distinction from "offences of more pernicious motives which would carry an aggravation of sentence". 27 The sentencing judge also accepted that the respondent's time in goal had been difficult because he had been threatened. It is a little unclear whether such threats were part of what must sadly be described as the wear and tear of prison life or whether they relate in some vague way to past or possibly future assistance. 28 The most significant subjective features addressed in the remarks of sentence related to the respondent's family situation and the prospects of rehabilitation. 29 The respondent has a fiancée. There are three children (apparently from the relationship). One of the children died of Sudden Infant Death Syndrome while the respondent was in custody. It was held that the respondent had received no support or counselling in prison and that his child's death had caused him extreme grief. 30 His Honour found that it was unlikely that the respondent would re-offend. His optimistic assessment in that regard was based on a number of matters: the respondent's family situation, the unchallenged evidence of the respondent's mother, the report of the psychologist, the change apparently brought about by the shock of imprisonment, the grief stemming from the death of his child, and a religious reawakening. The Crown submits that these conclusions were unduly sanguine in the circumstances. However, I consider that they were open to his Honour and would not be disposed to reject them. In this area I would give this relatively young man the benefit of the doubt so long as he realises that this is likely to be the last occasion that he would avoid a lengthy prison sentence for this type of offending. 31 Notwithstanding the subjective features, I accept the Crown's submissions that the objective gravity of the offences was such that a manifestly inadequate term of imprisonment was set. There were (as indicated) factual errors in his Honour's assessment, but in any event the guideline judgment in R v Henry (1999) 46 NSWLR 346 indicates compelling reasons why a term of 3 years imprisonment with a non-parole period of five months was inadequate. Judge Moore did not offer reasons for departing from the guideline judgment and, in my view, the subjective features (strong though they were) did not justify departure, at least to the level adopted. This was a case where the non-parole period failed to reflect the seriousness of the offence. Henry has been applied to the offence of robbery in company (R v Murchie (1999) 108 A Crim R 482). 32 There was also error in that his Honour failed to address each count of the indictment separately, as required by Pearce v The Queen (1998) 194 CLR 610. The offences were obviously a group, all occurring within a number of days. Nevertheless, there was a pattern of repeat offences and (in any event) proper sentencing practice as indicated in Pearce requires separate sentences to be imposed. 33 I would nevertheless decline to interfere on discretionary grounds. Over eight months have now elapsed since this young man was effectively re-committed into the care and custody of his mother, thereby enabling him to return to New Zealand to live with his family including his fiancée and two infant children and to take up the employment opportunity offered to him. The strong subjective features and the trust reflected in the sentencing judge's findings of prospects of rehabilitation indicate that it would be inappropriate for this Court now to impose a further custodial sentence. The respondent has had a first taste of imprisonment. He should, in the discretion of the Court, be given a last chance to turn his life around. Judge Moore should not have dealt so leniently with him as he did, but that is a different question to the one now facing this Court. 34 I would dismiss the appeal. 35 SULLY J: I agree with Mason P. 36 NEWMAN AJ: I agree with Mason P. ******************