New South Wales Court of Criminal Appeal CITATION: Tapueluelu v R [2006] NSWCCA 113 HEARING DATE(S): 3 April 2006 JUDGMENT DATE: 3 April 2006 JUDGMENT OF: Simpson J at 1; Grove J at 45, 47; Howie J at 46 EX TEMPORE JUDGMENT DATE: 04/03/2006 DECISION: (i) application for leave to appeal against sentence granted; (ii) sentence imposed in respect of the offence of robbery being armed with an offensive weapon quashed, and in lieu thereof the applicant sentenced to imprisonment for five years to commence on 17 February 2007 and to expire on 16 February 2012, with a non-parole period of two years and three months, to commence on 17 February 2007 and expire on 16 May 2009. The first date on which the applicant would be eligible for release on parole is 16 May 2009. CATCHWORDS: application for leave to appeal against severity of sentence - robbery in company - robbery armed with offensive weapon - pleas of guilty - imprisonment for eight years, non-parole period of six years - correct age and date of birth of applicant - prospects of rehabilitation - prior criminal record - previous offences dealt with in the Children's Court - recording of conviction in the Children's Court - whether trial judge erred in taking into account matters dealt with in Children's Court - evidence of other offences admissible if crime-free period of two years has not existed - offence of robbery in company aggravated by co-offender's possession of offensive weapon - joint criminal liability - sentencing judge intended to vary statutory ratio between head sentence and non-parole period - not put into effect in aggregate sentence - whether sentences manifestly excessive - accumulation of sentences - Children (Criminal Proceedings) Act 1987, s14, s15, s3 LEGISLATION CITED: Crimes Act 1900, s97 Crimes (Sentencing Procedure) Act 199, s44(2) CASES CITED: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 PARTIES: Moeakiola Tapueluelu - Applicant Crown - Respondent FILE NUMBER(S): CCA 2005/2220 COUNSEL: TS Corish - Applicant P Miller - Respondent SOLICITORS: S O'Connor - Applicant S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3271 LOWER COURT JUDICIAL OFFICER: Marien DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2220 GROVE J SIMPSON J HOWIE J Monday 3 April 2006 Moeakiola TAPUELUELU v REGINA Judgment 1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 7 March 2005 following his pleas of guilty to one count of robbery in company and one of robbery being armed with an offensive weapon. Each offence is an offence against s97 of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 20 years. On the first count (robbery in company) Marien DCJ sentenced the applicant to imprisonment for a fixed term of four years, commencing on 17 February 2004 and expiring on 16 February 2008; on the second count (armed robbery) he sentenced the applicant to a term of imprisonment of five years, commencing on 17 February 2007 (and thus accumulated on the earlier-imposed sentence by three years) with a non-parole period of three years, which will expire on 16 February 2010. The total sentence thereby imposed was of imprisonment for eight years with a non-parole period of six years. facts 2 The first offence (robbery in company) was committed on 18 February 2003. At about 8.00 pm on that day, the applicant, in company with another person whose identity has not been established, walked into a liquor store at Leumeah and approached the attendant. The co-offender produced a handgun which he pushed into the attendant's ribs; he demanded that the attendant get on the ground. 3 The applicant told the attendant to get up and open the cash register, an order with which he complied. The applicant removed a sum of money. Another customer arrived at the store and was ordered by the co-offender to get inside. The co-offender then asked where the safe was. The attendant told him where it was but said that it could not be opened. The applicant took some spirits from underneath the front counter. The co-offender told the attendant not to tell anybody what had happened, with the threat that he knew where the attendant lived. 4 The second offence was committed by the applicant alone on 23 October 2003. It also took place in a liquor store, this time in Marrickville. At about 5.00 pm the applicant entered the store and walked around for a short time before approaching the counter. He produced a semi-automatic firearm and pointed it towards the attendant's chest. He demanded to be given money. The attendant opened the till and handed all of the notes to the applicant. The applicant took EFTPOS receipts from the till. He told the attendant to open the safe, and told him, "no funny stuff". The attendant opened the safe and handed the applicant several coin rolls. The applicant demanded the attendant's wallet, from which the attendant produced $700 in notes. He also asked for the attendant's driver's licence. The money taken from the till amounted to a little over $3,000. subjective circumstances 5 The applicant was born in New Zealand, of Tongan parents, on 28 July 1980. He was, accordingly, 22 years of age at the time of the first offence; 23 at the second. (In these proceedings an issue has arisen about the correct age and date of birth of the applicant; the sentencing judge was, in fact, told that he had been born in 1979 and was 23 and 24 at the dates of the offences.) 6 The sentencing judge was provided with a series of pre-sentence reports provided by the Probation and Parole Service, as well as a psychological report. The applicant gave evidence as did his de facto wife. 7 It is apparent that the applicant was less than frank with both the Probation and Parole Service Officer who provided the report, and with the psychologist. He told both that he was married, and told the probation officer that he and his wife had two children. The reality is that the applicant was living in a de facto relationship. His partner, who is considerably older than he, has the care of two grandchildren. The applicant, however, plays a significant role in the lives of the children and performs a parental role. 8 He told the probation officer that he began using cannabis and alcohol at the age of eight or nine; he told the psychologist that he began to consume alcohol at the age of 18. He told the psychologist that he was the oldest of 11 children in his family; in oral evidence he said that he was the third eldest of 11 children. He told the psychologist that he did not gain anything from the robbery. This appears inconsistent with the statement of facts. The discrepancies do not appear to have been regarded as particularly significant by the sentencing judge, but they do invite some scepticism about the accuracy of the history the applicant gave to the probation officer and the psychologist. Bearing that in mind, his Honour appears to have accepted the majority of what was reported about the applicant, and to have accepted the oral evidence that he gave. 9 The family came to Australia when the applicant was about two years of age. The applicant's father is a Methodist minister. He was said to be a very strict disciplinarian. 10 The psychologist appears to have formed a reasonably favourable view of the applicant's prospects of rehabilitation. He concluded that there was no significant emotional disturbance, but that he did suffer from feelings of discouragement, low self-esteem, a degree of behavioural apathy, and feelings of inadequacy. He is immature, and has inadequately developed personality resources, or resources for independent functioning. He is not prone to aggressive behaviour although this may not be so when he is intoxicated. He has strong dependency needs. He was assessed as having a lower than average likelihood of recidivism, but the risk would be increased by substance abuse, inadequate impulse control, and peer group influences. He is of average intellectual ability. 11 In his evidence the applicant expressed regret for his conduct, and the effect that he recognised it must have had upon the liquor store attendants. The applicant has in the past had work, having been an apprentice carpenter, and having almost completed a TAFE course in carpentry. 12 He has a criminal record, which the sentencing judge regarded as not very serious. However, it includes a stealing offence for which he was dealt with in January 1995, in the Children's Court and a number of other Children's Court matters, of which the most serious and most relevant are an offence of robbery with aggression and attempted armed robbery in company, associated with other offences of lesser apparent seriousness. The applicant was dealt with for these offences in September 1995 in the Children's Court, and was subjected to a control order for four months with an additional term of eight months. These sentences are the subject of one of the grounds of appeal. 13 On 3 February 2004 he was dealt with at the Liverpool Local Court on a charge of break and enter with intent to steal, and possession of housebreaking implements. On each of these he was sentenced to imprisonment for three months, commencing on 18 November 2003 and expiring on 17 February 2004. That is the reason for the selection of the commencement date of the present sentences. the remarks on sentence 14 Marien DCJ recounted the facts of the offences, and the various aspects of the applicant's personal circumstances that had been put before him. As to his criminal record he said: "As an adult his record cannot be described as serious, comprising such offences as break enter and steal, possess housebreaking implements, and also convictions for larceny." He then said: "It is of some concern that there appear to be a number of matters in the Children's Court, but in particular I note that the offender was dealt with in September 1995 for the offence of robbery with aggression and also the offence of attempt armed robbery in company. For both of those matters he received a control order of four months with an additional term of eight months." Later, again with reference to these offences, and in the context of directing himself in terms of R v Henry [1999] NSWCCA 111;46 NSWLR 346 his Honour said: "Clearly, it cannot be said that the offender has no or little criminal history, given the robbery matters for which he was dealt with in the Children's Court. However, Mr Doyle submitted to me that I would take into account that they were in fact offences committed when he was a child, and some ten years ago. I do take that into account." He recorded the position as to the pleas of guilty. 15 The plea in respect to the armed robbery offence was entered in the Local Court and the applicant was committed to the District Court for sentence. The Crown conceded that that plea was entered at the first opportunity. The plea in respect of the robbery in company offence, however, was entered on 24 May 2004, which was the day fixed for the commencement of the trial. Marien DCJ did not quantify any discount he allowed the applicant in respect of the pleas of guilty. This was, I infer, because he sentenced by reference to the decision of this Court in Henry. The guideline sentence there promulgated has incorporated in it recognition of a plea of guilty. 16 His Honour considered that the robbery in company offence was aggravated by the fact that the applicant was in possession of an offensive weapon. This is not strictly correct; it was the co-offender who was in possession of the weapon. This was known to his Honour, because he had expressly alluded to it during the course of the applicant's cross-examination. His Honour held that the armed robbery offence was aggravated by the fact that he had previously committed the robbery in company. 17 A submission was made that his Honour ought to find that special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") existed, justifying departure from the ratio there specified between a head sentence and a non-parole period. He said: "I agree that those special circumstances justifying that variation are demonstrated in this case and I therefore do propose to vary the statutory ratio." 18 When it came to sentencing on the armed robbery offence, his Honour did implement that intention; he reduced by nine months the non-parole period that would otherwise have been applicable to a sentence of five years. However, by reason of the accumulation of the second sentence on the first, and whether intentionally or otherwise, his Honour restored the statutory ratio. The overall sentence is precisely in the statutory ratio. the grounds of the application 19 Four grounds of the application were pleaded. They are: "1. The learned sentencing judge erred in taking into account previous matters dealt with in the Children's Court. 2. The learned sentencing judge erred in his finding that the offence of 18 February 2003 was aggravated by the possession of an offensive weapon. 3. The learned sentencing judge erred in failing to reduce the effective non-parole period below 75% of the effective overall term. 4. The head sentence and non-parole period are manifestly excessive." ground 1 20 This Court received additional evidence, being a New Zealand issued birth certificate in the name of Amone Brian Barrett Moeakiola Tapueluelu. This shows a birth date of 28 July 1980. As I have indicated, the sentencing judge was told, including by the applicant himself, that his birth date was 28 July 1979. 21 I would accept the evidence of the Birth Certificate, and proceed on the basis that 1980 is the correct year of the applicant's birth. That is said to have this significance. On 15 September 1995 the applicant was convicted in the Bidura Children's Court of a series of offences, which include robbery in company, attempted armed robbery in company and violent disorder. These are the offences mentioned earlier, and were referred to by the sentencing judge. The papers of the Children's Court show a birth date of 28 August 1979. At that time the applicant was 15 years of age. The papers do not show the date of the offences. 22 S14 of the Children (Criminal Proceedings) Act 1987 ("the C(CP) Act") relevantly provides as follows: "14 Recording of conviction (1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court: (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, ..." 23 This establishes that the recording of the conviction in the Children's Court was an error, although an error brought about by the erroneous information provided to that Court. Had the correct information as to the applicant's date of birth been available to that Court, then the Court would not have recorded a conviction. This is not the occasion to correct error on the part of the Children's Court; but it does have an impact on the approach taken by Marien DCJ. 24 S15 of the C(CP) Act relevantly provides as follows: "15 Evidence of prior offences and other matters not admissible in certain criminal proceedings (1) The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if: (a) a conviction was not recorded against the person in respect of the firstmentioned offence, and (b) the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence." (emphasis added) 25 "Child" is defined in s3 of the C(CP) Act as a person under the age of 18 years. 26 The argument advanced on behalf of the applicant was that the Children's Court offences were committed while he was a child; (the Children's Court records, which were admitted in evidence for the applicant, show that these offences, which include offences that do not appear on the record provided to this Court, were committed on 31 August 1995, when, on the information now available, and which I would accept, the applicant was 15 years of age); a conviction ought not to have been recorded by reason of his age; and, if accurately informed, Marien DCJ ought not and would not have admitted evidence of those criminal proceedings. 27 The first of these arguments may be accepted: on facts truly recorded, a conviction ought not to have been recorded against the applicant in 1995. 28 There is, however, a flaw in the second part of the argument. S15 is not dependent upon there having been a "conviction". It is concerned with evidence of prior offences committed by children. But the section provides two conditions precedent to the prohibition on the admission in evidence of the earlier offence(s). The first of these is that a conviction was not recorded. I accept that this Court ought to proceed upon the basis that a conviction ought not to have been recorded was not recorded. The first condition is notionally met. The second condition is that the person has not within two years prior to the commencement of the proceedings for the other offence been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence. The "other offence" or "other offences" were the two offences with which Marien DCJ was dealing. The proceedings in relation to those offences were commenced, respectively, on 8 December 2003 and 18 May 2004. The applicant's record shows that, on 8 May 2003 and 4 August 2003 the applicant was fined in respect of driving offences, one of which was driving whilst his licence was cancelled. That is, within the two years preceding both of the "other offences" (the present offences) he was subject to the judgment, sentence, or order of a court whereby he was punished for another offence. On 3 February 2004 he was sentenced to the three months' control order, which I have already mentioned. This is relevant to the armed robbery offence, being within the period of two years prior to the commencement of proceedings in respect of that offence; it is not relevant in relation to the offence of robbery in company, since it post-dates that offence. 29 There were also offences for which the applicant was fined, on 7 November 2003. 30 Counsel for the applicant argued that the second condition as contained in s15(1)(b) does not render admissible evidence of the 1995 offences because they are outside the two year date: that is, that the subsections ought to be construed as excluding evidence of prior offences when they were committed within two years of the commencement of the current proceedings. In my opinion it is inescapable that s15 is intended to protect a person who has remained crime free for a period of two years from suffering the admission of evidence of offences committed outside of that period, but once it is established that the crime-free period has not existed, then evidence of any other offences, whenever committed, does become admissible, or at least they are not subject to the prohibition otherwise contained in s15. That is the only logical way of reading s15. 31 In my opinion the response made on behalf of the Crown to the applicant's contention is well made and correct. Evidence of the applicant's prior criminal conduct was not prohibited by s15(1). 32 It is immaterial that the proceedings in the Children's Court were said to result in a conviction; that did not have any bearing upon the course taken by the sentencing judge. Indeed, his Honour at no time used the word "conviction". 33 I would reject the first ground of appeal. ground 2 34 By the second ground the applicant complains that his Honour misdirected himself by saying that the offence of robbery in company was aggravated by the fact that he was in possession of an offensive weapon. 35 I do not think this ground can be made good. The applicant's co-offender was in possession of what might have been more than an offensive weapon, that is, a dangerous weapon; for the purpose of joint criminal liability, the applicant is taken also to have been in possession of it. His Honour was well aware that it was in fact the co-offender who had actual possession of the weapon. I would reject this ground of appeal. ground 3 36 The complaint here made is that, while expressly stating his intention of varying the statutory ratio between the head sentence and the non-parole period, his Honour failed to do so in relation to the time the applicant is actually to spend in custody. 37 On behalf of the Crown, the approach taken by the sentencing judge was defended. The Crown submitted that his Honour did not intend to vary the overall sentence. I do not think this can be accepted. His Honour made the observation in the context of recording a submission about the applicant's prospects of rehabilitation: "... and the clear need for ongoing and extended supervision in relation to [his alcohol] problem". 38 I think his Honour clearly did intend to vary the ratio between the effective non-parole period and head sentence. That was not reflected in the sentences ultimately passed. 39 In my opinion this ground has been made good. ground 4 40 On behalf of the applicant it was submitted that the previously asserted errors had led to the imposition of a manifestly excessive sentence. I have rejected two of those grounds. 41 In my opinion, it has not been shown that either sentence was manifestly excessive, although I would accept that they are at the upper end of the range available. The question is really whether the accumulation gave rise to a manifestly excessive total term of imprisonment. This was a head sentence of eight years with a non-parole period of six years. I am not prepared to find that this was manifestly excessive. In my opinion, while heavy, it was within the available sentencing discretion. 42 In my opinion the only error shown is in the non-implementation, in the practical result, of a finding of special circumstances. That calls for this Court to consider the re-sentencing of the applicant. 43 The Court received an affidavit affirmed by the applicant which confirms that he is making some effort at, and progress towards, rehabilitation. He has adopted a commitment to religion. His mother died on 1 January this year. The affidavit, while encouraging, does not really add anything to the material that was before Marien DCJ. Nevertheless, in my opinion, the applicant is entitled to expect, as it was suggested to him, that he would be granted the benefit of a finding of special circumstances, and, in my opinion, This Court should interfere to implement that intention. 44 I propose that the non-parole period imposed in respect of the armed robbery charge be reduced by nine months. The orders I propose are: (i) application for leave to appeal against sentence be granted; (ii) the sentence imposed in respect of the offence of robbery being armed with an offensive weapon be quashed, and in lieu thereof the applicant be sentenced to imprisonment for five years to commence on 17 February 2007 and to expire on 16 February 2012, with a non-parole period of two years and three months, to commence on 17 February 2007 and expire on 16 May 2009. The first date on which the applicant would be eligible for release on parole is 16 May 2009. 45 GROVE J: I agree with Simpson J. 46 HOWIE J: I also agree. 47 GROVE J: The order of the Court will therefore be as proposed by Simpson 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. 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