R v Halatoa [2019] NSWDC 140

District Court New South Wales

Medium Neutral Citation: R v Halatoa [2019] NSWDC 140 Hearing dates: 4 February 2019 Decision date: 04 February 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Offender sentenced to imprisonment for 5 years 10 months with a non parole period of 4 years 4 months Catchwords: CRIMINAL LAW- aggravated break and enter and commit serious indictable offence Legislation Cited: Crimes Act 1900 (NSW), s 112(2) Cases Cited: R v Ponfield [1999] NSWCCA 422; Bugmy v The Queen [2013] HCA 37 Category: Sentence Parties: Regina (Crown)

Ricky Halatoa (Offender) Representation: Mr Anderson (Solicitor)

Ms Kim (Solicitor) File Number(s): 2017/384322 Publication restriction: Nil

Judgment 1. Ricky Halatoa, you appear for sentence today in relation to one offence: that is, aggravated break and enter and committing a serious indictable offence - the serious indictable offence was larcency. 2. This involves a contravention of s 112(2) of the Crimes Act. The maximum penalty for that offence is 20 years' imprisonment. There is a standard non‑parole period of five years' imprisonment. There is also a relevant guideline judgment of R v Ponfield. 3. The facts surrounding your offending are contained in an agreed statement of facts. Slightly recast by me as to style but not substance, they are as follows. 4. As at 5 October 2017, you had been on parole for 4 weeks and, as at that date and whilst on parole, you had committed six previous offences of break and enter. 5. On 5 October 2017 you were, and went, near home unit premises in Wentworthville. Mrs Chatri lived in a unit in that complex with her husband, two children, and a nephew. 6. Normally the home unit, at least during the week, was unoccupied because the usual occupants were either working or studying at university. 7. At about a quarter past 1 in the afternoon, Mrs Chatri returned to her home. You had been there whilst she was out ‑ in fact, you were still there. You had forced your way in, through the back of the house, and you had a 15‑centimetre knife with you. 8. Whilst you were in the home unit, and before she returned, you went to Mrs Chatri's bedroom and to the bedroom of one of her adult children. 9. Mrs Chatri confronted you in her house. Her age is not revealed in the material before me. But, whatever her age, being confronted in your own home, where you are entitled to feel safe and secure, by a man holding a 15‑centimetre knife would no doubt have been a terrifying experience for her. 10. You walked past her, still holding the knife (but not in an overtly aggressive fashion) and you left the home unit, through the front door. You had stolen jewellery, the approximate commercial value of which was $4,500. That jewellery has never been returned to its rightful owner. 11. In terms of the objective seriousness of this offence, for an offence of its kind, it is below a midrange offence but not at the bottom of the range. 12. In addition, it is significantly aggravated by the fact that you were on parole. 13. You have a very long criminal history. Judges of this Court have, for a long time, pleaded with the authorities to produce criminal histories which are meaningful ‑ that is to say, that the offences appear in a chronological order, so that the judges can have some idea of offenders' offending trajectories ‑ but, like St John the Baptist, the words of the judges of this Court are voices crying in the wilderness. 14. But, even without the assistance of a meaningful chronolgogy of offending, you have a disturbing criminal history. You have multiple offences of robbery involving housebreaking, and you have numerous offences of dishonesty, over and above housebreaking. 15. In your case, Veen (No 2) is fully engaged: that is, your criminal history is, in and of itself, a further aggravating feature. This was your seventh break and enter. 16. Furthermore, the offence is aggravated because you were armed with that knife 17. Your parole was revoked on 6 October 2017. 18. You are 29 years old now. 19. Most of your adult life has been in custody. 20. Your background is set out in the psychologist's report. 21. You have a Tongan and Aboriginal‑Australian background. 22. The Crown, in its written submissions, accepted the history of your background that you gave the psychologist. That was generous of the Crown, considering your long history of dishonesty and where there is no independent corroboration of anything that you have said. But the Crown took that attitude, and I will sentence you accordingly. 23. Your upbringing, on the basis of that history, was a dysfunctional one, fully engaging the decision of the High Court in Bugmy, which says that a person with a dysfunctional upbringing is to be sentenced bearing in mind that factor –i.e. the moral culpability of the offender is reduced. 24. It would seem, as a result of your dysfunctional upbringing (which included physical and sexual abuse of you as a child) you have developed a long‑term - and, so far, unresolved - polysubstance abuse problem. You have, for many years (and since a child), abused alcohol, cannabis, ice, heroin and buprenorphine. You have attempted rehabilitation, without success. 25. You also had a very poor time at school, being suspended for violence and disruption 15 to 20 times. You attended eight primary schools, largely because your family kept moving. 26. Your parents have been in and out of gaol, along with your brothers and sisters. 27. You left school at the age of nine and you have done very little work since. Whatever work you have done has been largely of a manual kind. 28. You have started but not completed various courses whilst you have been in custody. There are many courses available to young offenders, but you have not chosen to complete any. 29. You have had substantive relationships with two women, from which five children have been born. There were three children with your first partner. That relationship has broken down and you do not have access to your children, nor they to you. Your children from your current relationship have been taken into care, no doubt because their mother is also in custody. It will no doubt be an ongoing stressor for you that you do not have access to your children. Whether you ever have access is not a matter for this Court. Whether you are allowed access will depend on a decision being made by the Children's Court. The paramount consideration for that court is the best interests of the children and, unless and until you attend to your drug and anger management issues, it is unlikely that you will have meaningful contact with those children. 30. You expressed remorse in the witness box for what you did to this lady. But, by having regard to what you did whilst on parole, this being the seventh such offence, I gained the impression, Mr Halatoa, that you were just saying words that you thought I should hear; I did not really believe you. 31. Your prospects for rehabilitation are said by your experienced advocate to be guarded. I regret to say that I think your prospects are poor, and it gives me no pleasure to say that. 32. Although you have been in custody for a long time as an adult, I am not going to make a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period. I have taken into account in that respect the risk of institutionalisation but I do not think, in the circumstances of this case, particularly given your poor engagement recently whilst on parole, that such a finding could be justified. 33. You pleaded guilty on the first day of your trial. That had practical value; it saved the Court the time of conducting the trial, it saved the Crown and Legal Aid the expenses of a trial. But it was a plea which had practical value only. I do not believe it contained an element of remorse. There will be a 10% discount from the sentence because of your plea. 34. In your case, both specific and general deterrence are fully engaged: by that I mean the sentence to be imposed is one which should discourage you from reoffending and it should discourage others from committing the same offence. 35. Clearly, no sentence other than one of full time imprisonment is appropriate. 36. One question which was not the subject of submissions before me is when should the date of the sentence commence. As an act of leniency, the start date of the sentence will be backdated to 11 September 2017. 37. Except for your plea of guilty, Mr Halatoa, I would have sentenced you to a term of imprisonment of six years and six months, but, because of the plea of guilty and the 10% discount, the term of the sentence is five years and ten months. 38. The non‑parole period ‑ that is, the minimum period you will serve - is four years and four months, and dates from 11 September 2017 and it will expire on 10 January 2022. 39. There will then be a balance of one year and six months, to date from 11 January 2022, which will expire on 10 July 2023. 40. Whether you are released to parole will be a matter for the Parole Authority. Much will depend on how you behave in gaol as to whether you are admitted to parole at all or when. 41. You will now go with the officers, thank you. 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. Decision last updated: 26 April 2019