District Court New South Wales Medium Neutral Citation: R v Piukala; R v Johnson [2019] NSWDC 143 Hearing dates: 11 December 2018; 15 February 2019 Date of orders: 15 February 2019 Decision date: 15 February 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Johnson: A term of imprisonment of 2 years, with a non-parole period of 1 year. Piukala: A term of imprisonment of 3 years, 4 months, with a non-parole period of 2 years, 4 months. See [38]. Catchwords: SENTENCING – armed robbery – guilty plea – aggravating factors – victim impact statement – subjective factors – drug addiction – prospects of rehabilitation SENTENCING – armed robbery – accessory – guilty plea – victim impact statement – subjective factors – mental health – drug addiction – prospects or rehabilitation Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Henry (1999) 46 NSWLR 346 R v Tran [1999] NSWCCA 109 R v Thomas [2007] NSWCCA 269 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) John Piukala (Offender) Stan Johnson (Offender) Representation: Ms Brown (Crown) Mr Waldersee (Offender – Piukala) Ms O' Shane (Offender – Johnson) File Number(s): 2017/362749; 2018/376118 Publication restriction: Nil Judgment 1. Sometime during the morning of Thursday 26 October 2017 a man named Wayne Morris made contact with Stan Johnson and asked him to do a favour. He asked him to pick up some people and give them a lift somewhere. As a result of this Johnson drove his car to Sturt Street, Telopea and picked up two females and a male, the Taufahema sisters and John Piukala. They drove to Hunter Street and parked near Auburn Girls' School. CCTV footage shows three people, namely Piukala and the two Taufahema sisters getting out of the car and walking in the direction of the school. 2. At about 1.10pm Piukala entered the school administration office wearing a knitted balaclava and holding a 15 centimetre hunting type knife in his right hand. He put the knife to the stomach of the female school administrator who was working in the office. She pushed the knife away. He pushed it closer to her stomach and he said, I want all the money, listen to me, just do it, don't scream, do as you're told and you won't get hurt. She said, Yeah, darling take everything, take anything you want. 1. She gave him a purple lunch box containing cash and an A4 envelope containing 40 smaller envelopes each with $50 in it. Later it was found that $5,180 in cash had been taken. The registration number of Johnson's car was recorded by a witness and CCTV footage from various sources in the area captured much of this activity. 2. It leads to Piukala and Johnson appearing for sentence, having pleaded guilty to the charge under s 97(1) of the Crimes Act 1900, of robbery armed with an offensive weapon which carries a maximum penalty of 20 years with no standard non-parole period. The maximum penalty is, of course, a yardstick to be used in the sentencing process which must be carried out in accordance with, and bearing in mind, the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 3. The agreed facts in the two cases are slightly different but there is no relevant conflict between the two. The facts have been amplified to a certain extent by evidence given by both offenders today. 4. The facts in Piukala indicate that Honora Taufahema had provided details about the school and the fact that cash would be on the premises, that being information which she had obtained from her daughter who was a student at the school. Piukala was arrested on 30 November 2017 and he denied any involvement in the offence and he said he had never been in Johnson's car, but DNA found in the car matched his profile. Search warrants were issued and executed at the home at Sturt Street where Taufahema lived. Piukala and Sandra Taufahema were found in bed together at that time and a hunting knife was recovered from the bedroom. It is not said to be established beyond reasonable doubt that this was the same knife used in the robbery but it is common ground between counsel that it was similar to the knife. 5. The basis of the plea by Johnson is as an accessory after the fact under ss 345 and 347 of the Crimes Act 1900 which provide that he is liable for the same penalty as a principal in the first degree. The specific basis of the plea, as set out in the agreed facts, is that he was present with Sandra and Honora Taufahema in the vicinity of Auburn Girls' High School when Piukala returned to Johnson's vehicle wearing a balaclava and carrying a hunting knife. Johnson was aware that Piukala had committed a robbery at the school when he returned to the car. Knowing that Piukala had committed the offence Johnson assisted him by driving him back to Sturt Street with the Taufahema sisters. 6. Johnson was arrested on 12 December 2017 and has served no time in custody in relation to this matter. Piukala has been in custody since his arrest on 30 November 2017 and any sentence of imprisonment will commence on that date, it being agreed that he has been in custody only in relation to this matter since that time. 7. Johnson made a number of admissions in an interview after his arrest conceding that he had picked up a male and two females and said that he had done so at the request of a friend, Wayne Morris. As he said to me in evidence today, he accepted that there had been text messages sent to him on his mobile providing him with the address at Sturt Street, Telopea which was the pickup address and there was also a map containing the address in Sturt Street written on the map in a book found in his car. 8. The agreed facts on sentence for Johnson also set out comments made by the Taufahema sisters when they were interviewed. The offender, Honora Taufahema, was charged with concealing a serious indictable offence which carries a maximum penalty of two years imprisonment and I imposed a fixed term of imprisonment of six months when I sentenced her on 11 December 2018. 9. Sandra Taufahema, the partner of Piukala, was sentenced to a nine month term of imprisonment with a non-parole period of six months at the Local Court on 14 November 2018 and has apparently been on bail pending an appeal which is to be heard by me on 27 February 2019. 10. Johnson was represented by Ms O'Shane today who, despite earlier suggestions, had not provided any psychological report or other subjective material in advance of the hearing. Written submissions were provided to the Court this morning some weeks after they were due to be provided pursuant to orders made on the previous occasion. Those written submissions contained a significant quantity of assertions about subjective matters which were unsupported by evidence and when this difficulty was pointed out to Ms O'Shane she chose to call Mr Johnson to give evidence and he provided some helpful detail as to his subjective circumstances. 11. He said that he had been working full-time as a forklift driver for the last month and a half, and he had also been working as a forklift driver for several years prior to that having left high school in year 12 and having commenced an apprenticeship for a short time. 12. His history is set out in a Sentencing Assessment Report which he confirmed in evidence today. He said that he was disappointed in his own behaviour and was apologetic for the impacts of his actions on the victims. He said, and I accept, that he has cut off ties with his co-offenders and he is attempting to associate with positive people. He said that he had been on methamphetamines and cannabis since 2006 and he was under the influence of those at the time of the offending. He had recently been encouraged by corrective officers to engage in the EQUIPS program of which he has done two weeks out of a nine week course and he has produced at least one clear urine test in recent weeks. He had been diagnosed with schizophrenia some four years ago and was prescribed Zyprexa by his general practitioner but after about two years he decided to cease his medication on the basis that he thought he could manage his mental health without resorting to medication, and he said that his lack of medication impacted his decision-making and his ability to think clearly. The Correctives officer said that he demonstrated significant understanding of the serious of his actions and acknowledged the consequences of his offending behaviour on the community. He was assessed as being at a medium to low risk of re-offending. 13. I should interpolate that I take account of the victim impact statement provided by the school administrator in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269 bearing in mind that it is not subject to testing, but it does highlight and speak eloquently of the significant distress and harm that the victim suffered having gone from being a hardworking single parent to being scared to leave the house and being unable to work. 14. Mr Johnson was born in November 1987. He has a record including destroy or damage property in 2006 dealt with under s 10, common assault dealt with under s 10 in 2007 and another assault dealt with under s 9 in 2007, break, enter and steal in 2008 and a robbery in company in 2008 leading to a sentence of three years and nine months with two year non-parole period, that being his last offence prior to the present one. 15. Mr Piukala, was born in 1994 and is only 24 years of age. His criminal history includes, an offence of assaulting a police officer in 2009, for which was given a s 33 bond in the Children's Court; in 2010 he was dealt with by a control order for reckless wounding in company; in 2011 a further control order for recklessly causing grievous bodily harm in company and affray; in 2008 there were offences of assault occasioning actual bodily harm and affray dealt with by probation and a larceny in 2011, as well as further charges of affray and possess prohibited drug in 2012 and 2016 dealt with by fines. 16. I should note that the basis of the pleas of guilty by the Taufahema sisters was that they were aware of information that would assist to apprehend and prosecute Piukala but failed to notify the police. 17. A significant quantity of written material was provided by Mr Waldersee of counsel for Mr Piukala. Dr Furst, a forensic psychiatrist, reported following a consultation with Mr Piukala, on 15 January. Mr Piukala adopted the history when he gave evidence today. He has been in a relationship with Sandra Taufahema for two years and was living together with her in Telopea. He has no dependents. He went to Auburn Public School and then Granville Boys' High School but had issues with anger and behavioural problems and was in trouble from police by the age of 13. He was expelled in 2008 when he was 13. He then went to Campbell House which is a behaviour school in Glenfield and stayed there until 2010, and left when he was 15. He played rugby league and rugby union until he was 14 or 15. He was put into juvenile detention for six months after a stabbing offence at Merrylands Railway Station and had been under juvenile justice supervision for several years. 18. He said that he had been using drugs, including ice, for several years and began to inject the drug in 2017 to a point where he became tolerant of methamphetamine using up to half of an eight ball or 1.75 grams per day at the time of his arrest. He said he was spending $350 a day on his habit. He had, according to Dr Furst, a vague memory of the offence. He says he did not have a job, he would sleep for three to four days and then need a shot of ice to get up. His evidence before me today he indicated a low intellect and poor recollection of matters although he did express to Dr Furst that he was ashamed of his actions saying, "I hate it, I wish I'd never done it" but he said, "If it didn't happen I would probably still be a junkie and I feel sorry for everyone involved" and he expressed an apology to the victim in evidence today. 19. He has become aware of the drug and alcohol program at John Morony Correctional Centre and wishes to continue that on a voluntary basis if he is in custody. 20. He said in evidence that he could not remember who it was that told him that the school was a good place to commit a robbery. He acknowledged that the balaclava and the knife was his and he had had them at home for some time. He said that the $5,000 that he stole was spent on ice and ice debts and food in the time before his arrest. He had undertaken no attempts at rehabilitation. 21. He admitted there had been some offences involving, as he called it, bupe, while in custody but he said that he has been feeling better and smarter while he has been in custody and off serious illicit substances. Dr Furst diagnosed a childhood conduct disorder and a substance use disorder involving alcohol and methamphetamines. Mr Waldersee has assisted me with a digest of cases from the Public Defender's web site covering about 20 years of appellate determinations in relation to these types of matters which set out a broad indication of the types of sentences which have been imposed for armed robberies. 22. The Crown concedes that each offender is entitled to a 25% discount on any term of imprisonment by reason of the utilitarian value of the early pleas of guilty. 23. As to Mr Johnson the Crown notes that when one looks at the objective seriousness of the matter the offender Johnson played an important role in the commission of the offence. He used his car to collect the three co-offenders from their residence and took them to the scene of the robbery and waited for them and then returned to their residence. He knew that Piukala had a balaclava and a knife, and knew that he had committed a robbery by the time that he returned to the car. As the Crown acknowledges there is no evidence that he received any benefit from his role in the offence and the offending is, in my view, in the mid-range of objective seriousness for this type of matter. 24. The Crown does not point to any aggravating factors and the only mitigating factors which have been the subject of address or apparent are the plea of guilty and the limited prospects of rehabilitation. 25. As to Mr Piukala, the Crown correctly, in my view, submits that he was the principal offender and he must be sentenced accordingly. His three co‑offenders played much lesser roles in the offences and he should receive the most severe sentence. He carried out a brazen robbery in broad daylight at a school, with no regard for the safety and wellbeing of hundreds of school children. It was a planned offence in the sense that it was not an opportunistic street robbery type of crime. He had no legitimate reason to be at the school, wearing a balaclava. 26. It was a targeted offence in the sense that a school full of students and civilian employees was unlikely to provide any resistance towards an armed offender. The victim and the school were vulnerable. The offender is a very large man of around 185 centimetres and weighing about 95 to 105 kilograms. Anyone seeing him armed with a knife and wearing a balaclava was likely to have been very afraid for their safety. The robbery did, as the victim impact statement shows, cause significant distress to the victim, who was a school administrator of many years standing. 27. His remorse expressed today and to Dr Furst was late and somewhat limited. Again the Crown's submission as to the offending falling slightly above the mid-range is appropriate in my view. 28. I have taken into account his record, including previous offences of violence which do not entitle him to any leniency. The Sentencing Assessment Report assessed him as being at a medium to high risk of re-offending, and in light of the evidence that I have seen that is an appropriate assessment. 29. As to aggravating factors there is no contest from Mr Waldersee that the victim was a teacher or other public official exercising public community functions and the offence arose because of her occupation, and the emotional harm caused by the offence was substantial. The only mitigating factors that were the subject of submissions were the plea of guilty and the limited prospects of rehabilitation. 30. The Crown correctly points to the R v Henry (1999) 46 NSWLR 346 guideline which outlines a sentence range of four to five years for a late plea for a certain type of broadly defined offence, and that case makes it clear that unless there are exceptional circumstances, a period of full-time custody should be imposed. 31. On behalf of Mr Johnson, Ms O'Shane's submission concedes that the objective gravity of his offending was, in terms of the primary offender, very high and that Mr Johnson gave considerable assistance to him in enabling a quick getaway by Piukala and his female cohorts. Ms O'Shane ultimately submitted that there were exceptional circumstances in this case, namely that this has been a wakeup call for him and he has taken steps to rehabilitate himself, but, as cases such as R v Tran [1999] NSWCCA 109 indicate, attempts at, or even achieving, rehabilitation is not necessarily an exceptional circumstance in this field. 32. I have taken account of the statistics provided by the Crown and bear in mind the limited use to which they can be put. Mr Waldersee's submissions note that the offender has commenced the remand addiction program at Parklea and that the evidence establishes that he is in the process of detoxifying from an ice addiction. 33. There is a limited degree to which moral culpability can be moderated in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 terms, given the diagnosis by Dr Furst which may and does, to a limited extent, reduce the significance of specific deterrence. 34. In the case of Mr Johnson it is apparent that a finding of special circumstances is appropriate given his lengthy period of full-time employment and attempts at rehabilitation, and he is clearly in my view someone who needs some extended period of supervision to enable him to hopefully return to a useful position in society. 35. Mr Piukala is also an appropriate candidate for a finding of special circumstances in my view in light of the evidence as to his need for future treatment and rehabilitation, and the fact that he is serving his first time in adult custody. 36. The evidence and the submissions to which I referred indicate that in both cases, in my view, a period of full-time custody is required. The orders that I will make are as follows: Johnson 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 2 years, to commence on 15 February 2019 and expiring on 14 February 2021. 3. I impose a non-parole period of 1 year, expiring on 14 February 2020. The offender is eligible for release to parole on that date. 4. I find special circumstances. Piukala 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 3 years, 4 months, to commence on 30 November 2017 and expiring on 29 March 2021. 3. I impose a non-parole period of 2 years, 3 months, expiring on 29 February 2020. The offender is eligible for release to parole on that date. 4. I find special circumstances. Note – These ex-tempore remarks were revised without access to the court file ********** 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: 29 April 2019