New South Wales Court of Criminal Appeal CITATION: Regina v Galuefa MAUAI [2005] NSWCCA 207 HEARING DATE(S): 22 March 2005 JUDGMENT DATE: 9 June 2005 JUDGMENT OF: James J at 1; Hislop J at 2; Hall J at 37 DECISION: 1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence quashed and in lieu thereof, the applicant is sentenced to imprisonment for a non-parole period of 4 years 6 months, commencing on 2 September 2003 and expiring on 1 March 2008 with the balance of the sentence of 2 years and 2 months to commence on 2 March 2008 and expire on 1 May 2010. The earliest day on which the applicant will become eligible for release on parole is 1 March 2008. CATCHWORDS: Criminal Law - Sentencing - Crimes (Sentencing Procedure) Act 1999 s21A - Special circumstances - Sentence manifestly excessive. Crimes Act 1900 - s 95(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A R v Foster (1995) 78 A Crim R 517 R v Holder (1983) 3 NSWLR 245 R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Tait (1979) 46 FLR 386 R v Tobar [2004] NSWCCA 391 R v Wickham [2004] NSWCCA 193 Whittaker v The King (1928) 41 CLR 230 Appellant - Galuefa Mauai PARTIES: Crown - Regina FILE NUMBER(S): CCA 2004/3321 Ms C Davenport SC - Appellant COUNSEL: Mr D Frearson SC - Crown SE O'Connor (Legal Aid Commission NSW) - Appellant SOLICITORS: S Kavanagh (Director of Public Prosecutions NSW) - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0007 LOWER COURT JUDICIAL OFFICER: Delaney DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2004/3321 CCAP JAMES J HISLOP J HALL J 9 June 2005 Regina v Galuefa MAUAI Judgment 1 JAMES J: I agree with Hislop J. 2 HISLOP J: On 11 December 2003, the applicant pleaded guilty to the offence of aggravated robbery contrary to the Crimes Act 1900 s 95(1). The maximum penalty for such an offence is 20 years imprisonment. 3 On 11 June 2004, the applicant was sentenced in the District Court for that offence to imprisonment for a total period of 9 years comprising a non-parole period of 6 years 6 months and a balance of sentence of 2 years and 6 months. 4 The applicant seeks leave to appeal against the sentence on the following grounds: 1. His Honour took into account irrelevant matters as circumstances of aggravation. 2. The finding of special circumstances was not reflected in the relationship of the non-parole period to the total sentence. 3. The sentence was manifestly excessive. 5 The offence occurred on 5 April 2003. The facts as stated by the sentencing judge in his Remarks on Sentence were: The offender together with the co-offender in this case Suaalii and Darren Certoma were high school friends and associates. Each obtained security guard licences and worked in the security industry at various licensed premises throughout Sydney. In March 2003, the offender Suaalii and Certoma met at the Palms Hotel, Chullora. At this time, Suaalii indicated that he owed money and wished to committ a robbery to obtain funds to repay debts. Suaalii and Certoma together with the offender discussed the licence premises at which they had previously worked and decided to commit a robbery at the Family Inn Hotel at Rydalmere. This hotel was apparently chosen because it had no video surveillance. The offender and Certoma had previously worked there as security guards. A plan of the layout of the Family Inn Hotel was drawn up and a plan devised. It appears that Certoma must have informed the offender and Suaalii that the only staff working there would be likely to be the bar manager, Ben Hough, his wife Colleen Thornburn (who at the time was pregnant). The robbery was planned to be committed on a Saturday morning because Suaalii finished his shift as a security guard on Friday night and could then pick up the offender before going to the Family Inn Hotel. It was also said that Certoma would be likely to be working on the Friday night and the early Saturday morning. On 5 April 2003 at about 3.20am, the Family Inn Hotel had been closed and Certoma was the only security guard working there. Hough finished removing all the money from the poker machines and Thornburn was cleaning up the tables. The offender and Suaalii gained entrance to the Family Hotel through an unlocked door. They were each armed with knives, carried duct tape and wore gloves and balaclavas. Suaalii had a twenty-three centimetre hunting style knife and the offender had a thirteen centimetre solid throwing knife. After they gained entry, the offender and Suaalii approached Hough and Certoma who was standing inside the Family Inn Hotel, removing money from the poker machines. Suaalii and the offender were immediately identified by Certoma by their voices and their build. The two offenders took Certoma, Thornburn and Hough to the main barrier area and made them lie on the ground, brandishing their knives as they did so. The victims cooperated. Suaalii and the offender asked who the manager was. Hough identified himself and he was taken to the main safe in the hotel. He opened it and a silent alarm was triggered as a result. Once inside the safe, the offender removed $31, 500 and placed it into a sports bag. They then tied up the victims, including Colleen Thornburn who was at that time, I am told, six months pregnant and was concerned about the fate of her child. The offenders shortly thereafter left the hotel. 6 His Honour in his Remarks on Sentence quoted from the statement of Mr Hough, as follows: I only had a look at the guy wearing the balaclava who had the knife. The balaclava was black and had two eye holes cut out. I don't remember seeing a mouth hole cut out of the balaclava. I did not recognise their voice however both sounded Islander when they spoke. The guy that came at us at 5'10" inches tall, about 120 kilograms and seemed pretty strong. He was wearing black clothing all over… As we were lying face down on the floor, they put my hands behind my back and put duct tape around them. They also put duct tape around my ankles. As we were being taped up, I heard one of them call the other 'Isaac' on two occasions. They were saying things which included, 'there is a bomb on the door if you move within the next fifteen minutes the bomb is going to go off. There is also a bomb in the hotel. We are going to be watching you from the hotel, nobody move'. 7 His Honour referred to the evidence of Ms Thornburn that she was scared that she was going to be struck in the stomach and might lose her baby and that she was afraid they were going to hurt her husband. 8 The applicant was born on 3 April 1983. He is of Samoan heritage. He left school in 1999 and had been in employment since that time until his arrest. He had no previous criminal history. Ground One – his Honour took into account irrelevant matters as circumstances of aggravation. 9 The Crimes (Sentencing Procedure) Act 1999 ("the Act") s 21A provides relevantly: (1) In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are (relevantly for present purposes) as follows: … (b) the offence involved the actual or threatened use of violence… (i) the offence was committed without regard for public safety… (k) the offender abused a position of trust or authority in relation to the victim… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. 10 His Honour in his Remarks on Sentence stated: The Act (viz. the Crimes (Sentencing Procedure) Act 1999 ) has provided, under s 21A, a framework for consideration of aggravating, mitigating factors and the like, as well as any other objective or subjective factor which relates to the relative seriousness of the offence. If one goes to the question of the aggravating factors in this case, in my opinion the aggravating factors under s 21A(2) are as follows, (b), (c), (e), (g), (i), (k), (l), (n), I consider all of those factors are present in this case. 11 The applicant submits his Honour erred in taking into account aggravating factors (b), (i) and (k). Section 21A(2)(b) 12 The indictment alleged that the applicant: …did rob Ben Hough of certain property…the property of the said Ben Hough, and at the time of the robbery deprived the said Ben Hough of his liberty. 13 In R v Foster (1995) 78 A Crim R 517 at 552 it was held: The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person's resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft. 14 The applicant submitted that his Honour infringed the requirement of the concluding words of s 21A(2) by taking into account as an aggravating factor that "the offence involved the actual or threatened use of violence" (s 21A(2)(b)) when these matters were elements of the offence. 15 In R v Wickham [2004] NSWCCA 193, Howie J, (with whom the other members of the court agreed) said: [22] When a sentencing court is about to consider matters of aggravation or mitigation under s 21A it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides: The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence. 16 The context of the sentencing judge's reference to aggravating factor (2)(b) makes it clear his Honour took that factor into account pursuant to s 21A, contrary to the requirements of the concluding sentence in s 21A(2). However, the Remarks on Sentence otherwise do not suggest his Honour gave any additional or cumulative effect to this factor and the infringement, in my opinion, is no more than a technical error of little or no significance. Section 21A(2)(i) 17 The applicant in his written submissions submitted: At the time of the offence the hotel was closed to the public. The side door was left open so that the offenders could enter the premises. It is difficult to see that, on those facts, there could be any conceivable danger to the public. It is submitted that his Honour erred in taking that matter into account on sentence. 18 It is not disputed that at the time of the offence, the only persons upon the premises apart from the offenders and Mr Certoma was Mr Hough and Ms Thornburn. His Honour was well aware of that factual situation and he accurately recorded it in his Remarks on Sentence. 19 The Crown conceded there was no issue of "public" safety directly involved and that there was an apparent error. It submitted the error was not such as would have significantly impacted upon sentence. 20 It is likely the reference to subsection (2)(i) was merely a slip. It does not appear to have impacted upon sentence. Section 21A(2)(k) 21 The applicant, in his written submissions submitted: there was no evidence that the applicant was in any position of trust in relation to the victim. The applicant was employed by Australian Vending Security and had been employed by them as a permanent casual for 18 months. The evidence was that the applicant had worked at the hotel as a security guard on six occasions. The last occasion that he worked in the hotel was on 4 January 2003. It is submitted that this does not come within the concept of abuse of a position of trust as contemplated by s 21A(2)(k) and should not have been taken into account by his Honour. 22 His Honour identified the aggravating factor to which he had regard in the following words: One of the aggravating features in this case was that this was a person who had been working in the security industry. He had worked at this establishment before. He was a person who, in the circumstances, was someone in whom persons may have had some trust. He has without doubt significantly abused that trust by committing these crimes. 23 The matters which caused his Honour to categorise the situation as falling within ss (2)(k) were objective factors which affected the relative seriousness of the offence, and which his Honour was entitled to take into account pursuant to s 21A(1)(c) if those matters were not appropriately categorised as within s 21A(2)(k). It is the underlying facts which are relevant, not the label which is attached to them. His Honour was well aware of the underlying facts which he took into account. In my opinion no relevant error has been demonstrated. Ground Two - The finding of special circumstances was not reflected in the relationship of the non-parole period to the total sentence. 24 His Honour in his Remarks on Sentence said: I am satisfied that special circumstances have been established. These are based on the fact that the offender will be spending time in custody for the first time as a consequence of this offence, his youth and his need to be rehabilitated back into the community…I am satisfied that in this case pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act it is appropriate that there should be a variation of the statutory proportion between the non-parole period and the balance of the sentence…I consider having found special circumstances, that it is appropriate to set a balance of sentence of 2 years 6 months. 25 The applicant in his submissions contended that the ratio between the head sentence and non-parole period was 72% and this did not adequately reflect the findings of special circumstances made by his Honour. I accept this submission. 26 It was also submitted by the applicant that his Honour, having found special circumstances, had given effect to that decision by increasing the balance of the term rather than reducing the non-parole period in the context of the appropriate total term contrary to R v Tobar [2004] NSWCCA 391 [33] – [39]. 27 His Honour appears to have first determined the non-parole period and then imposed a balance of term which exceeded the statutory ratio of one third of that term, contrary to the principles in R v Tobar. I am satisfied that error in this regard has been demonstrated. Ground Three – the sentence was manifestly excessive. 28 His Honour held: In my opinion, this is an offence which is above the mid range of offences for this type. I base this opinion on the facts and circumstances. The previous work history of the offender, the fact that he was in the security industry, this was not an offence committed for need but for greed. He was a person who was otherwise of good character, he had family support and the actions that he took on this particular night involving Mr Hough and Ms Thornburn, the manner in which the offence was carried out, places it, in my opinion, above the mid range as a starting point for sentence. His Honour allowed a discount for an early plea and assistance to the authorities of, "somewhere in the region of the total of 30%". 29 The applicant submitted the sentence was manifestly excessive because: a) His Honour failed to have adequate regard to the youth of the applicant and the absence of any criminal record and other positive subjective factors; and b) Judicial Commission statistics showed that in relation to all offenders sentenced to imprisonment for this offence, only 6 of 233 received a greater head sentence, and only 3 of 202 received a greater non-parole period. 30 The Crown submitted the sentence was an appropriate exercise of the sentencing discretion, but acknowledged it was "a very heavy sentence" and "perhaps at the top of the range". 31 "The decision of the primary judge must….be regarded as prima facie correct…" – Whittaker v The King (1928) 41 CLR 230 at 249, R v Holder (1983) 3 NSWLR 245 at 253 B-E. An appellate court does not interfere with a sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error – R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79]. 32 Notwithstanding my reluctance to interfere with a sentence imposed by an experienced District Court judge, I have formed the positive opinion that some other sentence is warranted in law in this case and should have been passed. As was accepted by the parties, his Honour's starting point appears to have been over 12 years imprisonment. 33 In my opinion, greater weight should have been given to the applicant's age, the fact he was previously of good character, in regular employment and provided significant financial support to his family, that it would be the first time he had been in custody, that the offence should be considered a one-off and that there were good prospects of rehabilitation. Adequate regard should be had to the special circumstances identified by his Honour. The case, in my opinion, is not one which, when all circumstances are considered, should fall within the top 3% of sentences for an offence of this nature. 34 It was submitted his Honour erred in applying principles of parity in relation to the sentences imposed upon the applicant and the co-offender Suaalli. It was contended his Honour should have imposed a lesser sentence upon the applicant as his Honour had allowed the applicant a discount of 30% for the plea and some assistance to the authorities whereas he had allowed a discount of 25% only in the case of Suaalii, and Suaallii had another offence on his record. However, it is clear from the judgment that his Honour considered there was a greater degree of aggravation in the applicant's case as he had worked at the Family Inn Hotel and had used information he had thus gained for perpetrating the crime. Further, his Honour had made it clear during the sentence hearings that he proposed to apply the principles of parity and there was no dissent to that course from any of the legal representatives. Accordingly, I do not accept this submission. 35 I acknowledge the offence was a serious one and was aggravated, inter alia, by the use of information obtained from work in the security industry and the binding of a pregnant woman. However, in my opinion, the sentence required at law was a non-parole period of 4 years 6 months, commencing on 2 September 2003 with the balance of sentence being 2 years and 2 months. I have taken into account on sentence, evidence tendered on appeal which indicates the applicant is participating in educational and other courses and programmes whilst in gaol and the special circumstances identified by his Honour. Orders 36 I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence quashed and in lieu thereof, the applicant is sentenced to imprisonment for a non-parole period of 4 years 6 months, commencing on 2 September 2003 and expiring on 1 March 2008 with the balance of the sentence of 2 years and 2 months to commence on 2 March 2008 and expire on 1 May 2010. The earliest day on which the applicant will become eligible for release on parole is 1 March 2008. 37 HALL J: I agree with Hislop, J. ********** 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.