REGINA v. TAUFUA [2001] NSWCCA 411

New South Wales Court of Criminal Appeal

CITATION : REGINA v. TAUFUA [2001] NSWCCA 411 FILE NUMBER(S) : CCA No. 60107 of 2001 HEARING DATE(S) : Thursday 11 October 2001 JUDGMENT DATE : 11 October 2001

PARTIES : REGINA v. TAUFUA, David Uaine JUDGMENT OF : Stein JA at 43; Studdert J at 48; Greg James J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/2038; 00/31/0139 LOWER COURT JUDICIAL Blanch, CJ/DC OFFICER :

COUNSEL : Crown: D.M.L. Woodburne App: In person (pro bono - P.J.D. Hamill) SOLICITORS : Crown: S.E. O'Connor App: In person CATCHWORDS : Criminal law - application for leave to appeal against sentence - robbery - different tellers menaced in one incident - whether an abuse not to charge as only one offence - sentences concurrent - no abuse - other offences - cumulation of sentences - no error - leave granted - appeal dismissed. LEGISLATION CITED : N/A CASES CITED: Fernando (1992) 76 A. Crim. R. 58 DECISION : Leave to appeal against sentence granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL No. 60107 of 2001 STEIN, JA. STUDDERT, J. GREG JAMES, J.

THURSDAY 11 OCTOBER 2001 REGINA v. DAVID UAINE TAUFUA JUDGMENT 1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed by the Chief Judge of the District Court in respect of offences charged in two indictments. 2 On the first indictment, the applicant was charged with three offences of armed robbery and one of assault with intent to rob, the maximum penalty for which offences is 20 years imprisonment. 3 On the second indictment the applicant was charged with three offences of shoot with intent to prevent apprehension, crimes punishable by 25 years imprisonment maximum. There was also an offence of firing a firearm in a manner likely to injure persons or property, a crime punishable by a maximum penalty of 20 years imprisonment. There were a further two charges of offences of using an offensive weapon with intent to prevent lawful apprehension, and a charge of the offence of detaining a person for advantage (generally referred to as kidnapping), punishable, in the circumstance that injury is not caused to the victim, by a maximum of 14 years imprisonment. 4 In addition, his Honour was asked to take into account on a Form 1, offences of larceny, possess firearm, and take and drive conveyance without consent. 5 In each case the applicant pleaded guilty to the crimes charged and his Honour had regard to those pleas, as he was required to do, for the purposes of sentencing. His Honour took the offences on the Form 1 into account. 6 His Honour passed sentences for the offences comprised in the four counts in the first indictment of a fixed term of imprisonment for five years to commence on 7 January 2000 and to expire on 6 January 2005. On those in the second indictment comprised in counts one to three, and on the Form 1 offences, his Honour passed sentences of imprisonment for 10 years to commence on 6 January 2005 and to expire on 5 January 2015. His Honour imposed a non-parole period of five years to expire on 5 January 2010. For the offences comprised in the remaining counts on the second indictment his Honour passed sentences of imprisonment of five years fixed terms to commence on 6 January 2005 and to expire on 5 January 2010. 7 It becomes apparent, on an analysis of those sentences, the concurrency of the sentences, and the cumulative effect of certain of the sentences, that an overall sentence was passed commencing on 7 January 2000 of 10 years actually to be served ie., a non-parole period of that 10 years and a parole period of five years. 8 The application for leave to appeal against sentence asserted two grounds. They are, firstly, that his Honour erred in the way in which he cumulated sentences and, in so far as the culpability of the individual robbery offences might have been said to interact with the culpability of the other robbery offences, by dealing with the one incident as comprising several offences, passed sentences which, considered overall, exceeded that which was required, and so that any cumulation upon those sentences of the sentences passed on the second indictment produced a total sentence which exceeded that which was appropriate. 9 In addition, the more general ground that the sentences were manifestly excessive in totality was also taken. 10 The short facts of the events which gave rise to the charges and the convictions were set out by the learned Chief Judge in his remarks on sentence. Dealing with the offences of robbery, shortly, the applicant on 30 December 1999 entered the Greater Building Society in Beresfield and in one sequence of events, as the trial judge found it to be, menaced four victims seeking to obtain property from each of the four employees of the Building Society. 11 At about 9.30 am on that day, wearing a cap, sunglasses, a black nylon jacket, black jeans and black lace-up boots, and carrying a pistol, he entered the offices of the Building Society. There were a number of customers, including the children. He approached Ms. O'Dowd, one of the tellers, and told her to "empty the drawer" and she then handed him money. He then turned the pistol on Mr. Schauffler and demanded money. That teller, however, could not open the drawer. He also obtained at gunpoint money from two other tellers, Ms. Jones and Ms. Black. 12 The learned trial judge said in relation to that combination of offences:- "As I have said, it was effectively, the one transaction and I believe in so far as sentencing is concerned it is appropriate to impose one sentence which deals with all of those offences. Each sentence therefore will be concurrent and will of course take into account the general surrounding circumstances, including the fact that there were four people who were menaced by the gun." 13 I do not understand that by those remarks his Honour was considering the transaction to be other than one series of events in which robbery was perpetrated but which had four victims. I do not see that the culpability of what occurred has in any way been artificially inflated by the offences having been charged in the way in which they were as separate robberies. Nor do I see that there was any double jeopardy, legal impediment or abuse involved in such charging. 14 The true issue on an application of this kind is as to whether the sentence, having regard to the circumstances, was excessive. 15 The second group of offences involved facts more complicated. On 7 January at about 12.55 p.m. a police officer spoke to the applicant. At that point he seemed to be in possession of a pistol. The trial judge found that he pointed that pistol at the constable's head at about one metre away from the constable. She crouched covering her head. Another officer called on the applicant to drop his gun. At that stage his Honour said:- "Neither of them had their firearms drawn." 16 I take that to be a reference to the two police officers. His Honour refers to a further Constable being present at that time. His Honour found that the applicant moved the aim of his pistol in the direction of these two latter constables and then back to the first constable. That menacing with the pistol was the subject matter of certain of the charges. 17 The applicant walked away still holding his pistol, followed by the police officers. He went into the Stardust Hotel. Other police were called. Later he left the hotel and walked to an alleyway. Another police officer entered the alleyway from the direction in which the applicant was walking. He saw the applicant walking towards him still with the pistol. The constable had his gun drawn and asked the applicant to stop, but the applicant aimed his gun at the constable from about fifteen metres, causing the constable to take cover. The applicant then went to the side entrance of a nearby building where he approached a civilian victim, putting the pistol to that man's head. He forced the man to get into a truck, placing the pistol against the man's head whilst he held the man in a headlock. He pushed the victim into the driver's seat and climbed over to the passenger's seat. Holding the gun on the victim he told him to drive the truck away. 18 The truck was followed by numerous police vehicles. During the journey the applicant leant out of the passenger's side window pointing the pistol directly at two police officers that were in a pursuing police vehicle and pulled the slide mechanism of the pistol to the rear and released it, thereby enabling it to be fired. 19 When the truck was stopped in traffic he leant out of the vehicle and discharged one round in the direction of those police vehicles but that round did not strike anybody. 20 The truck then crossed to the incorrect side of the road, moved around traffic and was driven past the Cabramatta Police Station. At a point in St. Johns Road the applicant pointed the pistol out of the truck and fired another round into an adjacent block of flats. This was in an area where there were a number of pedestrians on the footpath, but no one was injured by the discharge of the gun. 21 The journey continued until a point at the intersection of the Cumberland Highway with John Street. The applicant sat on a window ledge of the truck and fired two or three shots towards Constables Rudd and Murphy who were still following behind. None of these shots found their mark and eventually the truck stopped in Old Cabramatta Road East. The applicant got out of the truck with the civilian victim. 22 The police vehicle stopped a short distance away but the pistol held by the applicant was pointed at them. Constable Murphy fired one shot at the applicant, which struck the passenger door of the truck. The officer's pistol then jammed. By the time he had cleared the jam the applicant had removed the victim from the truck and was holding him as a hostage in a hostile position with the pistol pointed at his neck. 23 The applicant then walked across the road and entered a nearby pharmacy. Staff and customers of the pharmacy fled. A siege situation developed in the pharmacy. About five minutes after entering the shop the applicant discharged a further shot from the pistol which struck a brick wall on the other side of the road from the pharmacy, near to where police were positioned. The siege continued for two and a half to three hours during which time the applicant held the pistol to the head of the victim and told the victim to search for syringes. During the course of the siege, some money was removed and a syringe was found and the applicant got the victim to help him remove a white substance from his wallet and assist him in mixing the substance which the applicant then put in the syringe and injected himself. 24 Subsequently the victim was released in return for cigarettes. 25 Police hostage negotiators reminded the applicant he was a father and had responsibilities. He then left the chemist shop and lay on the ground where he was arrested and his pistol, a nine millimetre self-loading pistol, was recovered. There was one round in the magazine and one round in the chamber. 26 In addition to these matters which were found by the learned Chief Judge, there was evidence that during this time the applicant was withdrawing from a heroin addiction and was suicidal. 27 His Honour found the offences involved in these events to be extremely serious. He referred to the applicant's prior subjective circumstances. At the time of sentence the applicant was 27 years of age, having been born in 1973. He had come to Australian when he was six from New Zealand and has a criminal history which began when he was only 15 years old. 28 His Honour referred to the circumstances of that criminal history, and the offences which resulted in the applicant having spent a significant time in institutions as a young person. He had been in gaol as an adult, indeed for a substantial period of time in consequence of his having been charged and convicted of a robbery offence, which conviction was overturned causing a new trial. A second conviction was also overturned on appeal. A third trial occurred where the jury disagreed. He was eventually no-billed. He was in due course able to receive bail and was on bail at the time at which these offences were committed. He had been released from custody only two weeks prior to the Beresfield robberies. 29 Since he had not been in custody on a continuous basis, and since, to diminish these sentences for the time the applicant was in custody referrable to that earlier charge would not have been in accord with authority, the learned trial judge did allow a reduction for the period of some 27 months the applicant had spent in gaol. He, however, referred to that matter in circumstances which make it clear that he had regard to the fact the applicant had been in custody for that period when fixing the sentences overall. He also had regard to the reports dealing with the applicant's life and background, including a report from a psychologist, a report from Dr Olav Neilssen, psychiatrist, and a report from the Community Welfare worker, the Pacific Island Welfare Project. There was also tendered to the court a letter from his sister referring to the family difficulties, which were set out in some detail in the histories, those reports to which I have referred. 30 His Honour referred particularly to the fact that the violence associated with these offences meant that the applicant would be detained in significant segregation within the prison system, which segregation his Honour found was, and I have no doubt still is, having a profound effect upon him. His Honour concluded that the applicant also showed signs of institutionalisation which process would advance with the years the applicant would have to spend in gaol. His Honour referred to the applicant's intellectual function being at a low level; that he was going to have extremely difficulty readapting to the community. His Honour accepted at the conclusion of the sentence he would be institutionalised and would not have any of the strengths to deal with that and overcome it. 31 His Honour specifically found matters going to mitigate the sentence as were relevant to the submissions that were made by counsel on his behalf to us concerning the limited requirements for general deterrence arising from the applicant's heroin addiction and withdrawal, and his mental problems. I see no error in that. I note that his Honour specifically found matters which go to the circumstances of the applicant's upbringing in conditions of disadvantage, including poverty, and his Honour took them into account. It was submitted that his family background and circumstances go to support the application of those principles referred to in the decision in R v. Fernando (1992) 76 A. Crim. R. 58 and that his Honour erred in not applying those principles. However, in my view, his Honour did properly have regard to the factual conditions in this case as he would have had he expressly applied Fernando (supra). 32 His Honour further found that the applicant, when committing, particularly, the offences charged in the second indictment, appeared to have been, according to the evidence, calm and deliberate in his actions. His Honour held that it was an appalling criminal episode which had to be understood in the light of all the underlying circumstances. In that regard, his Honour referred to the prior history, the psychiatric problems, and the heroin addiction. 33 It was with these matters in mind that his Honour structured the sentences in the way in which he did, ie., to look globally at the first episode and impose a sentence which is concurrent on each of the offences charged in the first indictment. 34 I do not consider his Honour was in error in any way in taking that course. Indeed, when one looks at the totality of the sentence on the first indictment, it may be that such an approach was lenient. His Honour concluded that the second episode, which was much more serious, could be approached in the same way, i.e. to impose a sentence concurrent for the first charge in the second indictment which globally reflected the criminality involved. Again, I find no error in that approach. His Honour concluded in discretion that that sentence would be cumulative upon the sentence first imposed. I see no error in that approach. 35 It is submitted that each of the sentences exceed that which was appropriate for the series of crimes encompassed by each group of sentences. I do not agree. Indeed, when one comes to examine the very serious criminality involved in the second series of offences, those embraced by the second indictment, his Honour's sentence could again be considered as lenient. I see no error in the cumulation of the two groups of sentences. 36 His Honour concluded there was an appropriate basis for disturbing the statutory ratio for a non-parole period. In particular, his Honour had regard to the fact that the sentence would inevitably produce a significant destruction of the applicant as a human being because of the long period in gaol. I can only share with his Honour the compassion his Honour evinced for the individual that he was so sentencing and his recognition of that fact. But his Honour was bound to sentence according to law. 37 This is a court of error. This court may only interfere if his Honour has fallen into legal error. Accepting that what his Honour was dealing with here was an exercise of gross criminality as a result of the effects, appalling effects, on this applicant of drugs, nonetheless I am unable to detect legal error in what his Honour did such as to warrant this court intervening. 38 I share his Honour's view that it is to be hoped that within the custodial situation the applicant should be treated in a way which will assist in his eventual rehabilitation, and hope that the family life and care which his Honour referred to will remain to assist him to achieve that. But I cannot conclude that his Honour has fallen into error in imposing the sentence that he did. 39 In the extensive written submissions that were provided that question of an inflation of culpability leading to a higher sentence to which I have referred was raised. I reiterate that I reject that submission. 40 In addition, there was raised the question of cumulation. I reiterate that I would reject that submission. 41 There was also raised by comparison with various cases, of differing circumstances, some of which were in differing jurisdictions, and by reference to the sentencing statistics prepared by the Judicial Commission, provided to us in submissions this morning, the submission that the overall sentence and the component sentences were manifestly excessive having regard to the criminality involved. None of these cases are other than specific illustrations on other occasions of other facts with other results. I am unable to accept that as showing any foundation for the general proposition that this sentence or its components is so far in excess of that which should have been passed as to show error in the exercise of discretion. 42 I have therefore come to the conclusion that the application for leave should be granted - as the matter has been the subject of extensive written submissions and to a lesser extent the submissions of counsel, who kindly offered to assist on a pro bono basis the court and the applicant but the appeal should be dismissed. 43 STEIN, JA: I agree with the reasons and proposed orders of Greg James, J. and will merely add some short remarks of my own. 44 First, I want to record that the applicant has appeared for himself with the aid of detailed written submissions that were prepared on his behalf, both in chief and in reply to the Crown's submissions. However, this morning Mr. Hamill of counsel, in the best spirit of the bar, volunteered to be an amicus for the court and to assist the applicant, which he did with his consent. That resulted in Mr. Hamill proffering some advice to the applicant and making some submissions in relation to the application before the court. This was supplemented by some further oral submissions made by the applicant himself. 45 Bearing in mind the factual circumstances of the offences, as related by Greg James, J., and to be found in the judgment of the Chief Judge of the District Court, the conclusion must be that they were extraordinarily serious in their nature, especially in relation to the second indictment. It is plain that it cannot be concluded that the sentences imposed by his Honour are excessive in their totality, let alone manifestly excessive. Nor am I able to conclude that the accumulation of the sentences by his Honour involved any error. Indeed, in one way his Honour's sentences may be seen as being on the lenient side. There is no circumstance that I can see that can constitute double jeopardy or an abuse of process. 46 Greg James, J. has referred to the tragedy of the situation of the applicant because of his severe drug addiction, and I would agree with his Honour's remarks. The only word that I would add is that it was very fortunate the tragedy was not worse than it was and that none of the bullets found their mark. 47 I agree with Greg James, J. that the application for leave appeal to appeal should be granted but the appeal dismissed. 48 STUDDERT, J: I agree with the orders proposed by Greg James, J. I also agree with all that has been said by the other members of the court. I would only wish to express my own appreciation for the assistance offered by Mr. Hamill of counsel to the applicant, and indeed to this court, assistance offered in the best spirit of the bar. 49 STEIN, JA: The orders of the court are accordingly that the application for leave to appeal against sentence is granted and the appeal is dismissed. ********