R v Tuaoi [2018] NSWDC 498

District Court New South Wales

Medium Neutral Citation: R v Tuaoi [2018] NSWDC 498 Hearing dates: 6 August 2018, 26 September 2018 Date of orders: 05 December 2018 Decision date: 05 December 2018 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [77] Catchwords: CRIMINAL LAW – sentence – robbery in company – Form 1 – joint criminal enterprise Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Barbaro v R; Zirilli v R (2014) 253 CLR 58 R v Kwon [2004] NSWCCA 456 R v McNaughton (2006) 66 NSWLR 566 R v Pham [2005] NSWCCA 94 The Queen v Pham (2015) 256 CLR 550 Veen v The Queen (No 2) (1988) 164 CLR 465 Category: Sentence Parties: Regina (Crown) Tanielu Tuaoi (Offender) Representation: Counsel: Mr M Paish (Crown) Mr R Rajalingam (Offender)

Solicitors: ODPP (Crown) Ly Lawyers (Offender) File Number(s): 2016/326832 Publication restriction: None

Remarks on Sentence

Introduction 1. The Offender appears before the Court today for sentencing after pleading guilty to the charge on the Crown Sentence Summary (Exhibit A). The charge is robbery in company in contravention of s97(1) of the Crimes Act. The maximum applicable penalty is 20 years imprisonment and there is no standard non-parole period. 2. The charge is that on 17 October 2016 at Lalor Park and other places in the State of New South Wales, whilst in the company of Reshma Shariff, the Offender robbed Douglas Stanley of certain property, namely a mobile phone and cash, being the property of Douglas Stanley. 3. The legislative guideposts provide an indicator as to the seriousness of the offending. In exercising its discretion, the Court must always arrive at an outcome that is just in all the circumstances. As mentioned, the maximum penalty in respect of this offence is very high, that is 20 years, indicating that the community and Parliament regard the offending as serious. As mentioned, there is no standard non‑parole period. 4. The Offender has requested that, in sentencing on the principal charge, the Court take into account a further offence with which the Offender has been charged but not convicted. The Offender has admitted his guilt in relation to that additional charge. The charge on the Form 1 is taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal offence to which the Form 1 attaches. The Court does so by giving greater weight to elements which are always material in the sentencing process. The first is the need for personal deterrence; the second is the community entitlement to extract retribution for serious offences. 5. The charge on the Form 1, which is sequence 3, is a detain with intent to obtain a financial advantage in company, in breach of s86(2)(a) of the Crimes Act. The maximum penalty for that offence is also 20 years imprisonment. I note the copy of the Form 1 on the court file while signed by the parties appears not to have been signed by the Court and, accordingly, I shall sign the certification in the Form 1 and date it today, confirming that I have taken into account the charge on the Form 1 in respect of which the Offender has admitted guilt. 6. The offending was committed on 17 October 2016 and the Offender was arrested on 23 January 2017, being the date upon which he was also charged. He was then held in custody for a period of five days until 27 January 2017. According to the Crown Sentence Summary Cover Sheet, the matter was committed for trial on 15 December 2017 from the Penrith Local Court. 7. The matter was fixed for trial on 12 June 2018 at the Parramatta District Court. The Offender pleaded guilty to the charges on 13 June 2018, being the day after the date set for the commencement of the trial in the matter. This was at a relatively late stage of these proceedings, which will of course be taken into account in assessing the utilitarian value of the guilty plea. 8. As noted, the Offender was in custody from 23 January 2017 to 27 January 2017 before being released on bail. 9. At the sentence hearing the Crown relied upon the following: 1. Crown Bundle and the documents attached thereto (Exhibit A); and 2. Pre‑Sentence Report (exhibit B). 1. The Offender relied upon the following material: 1. report by Laura Durkin, psychologist, dated 31 July 2018 (Exhibit 1); 2. character reference by Jamilee Aerenga dated 24 June 2018 (Exhibit 2); and 3. Discharge Summary (Exhibit 3). 1. Today the Offender has tendered a Death Certificate in respect of his father, who passed away a few months ago. The Offender also relied upon Submissions on Sentence (MFI 1). 2. I should note that since the matter was heard the Crown has sent through a short submission dealing with the question of objective seriousness, which I will mark for identification, MFI 2.