Citation: R v Taufahema [2007] NSWSC 1460
Court: Supreme Court of New South Wales
Date: 13 December 2007
Judge(s): Michael Grove J
Background
The offender, John Taufahema, was one of four occupants of a reportedly stolen motor vehicle stopped by Senior Constable Glenn McEnallay in March 2002. A co-offender, Sione Penisini, produced a revolver and shot the officer five times. McEnallay died from his wounds one week later. The four occupants, including the offender, jointly possessed four loaded revolvers in the vehicle at the time.
The offender had previously been convicted of murder following trial before Wood CJ at CL, along with related offences including using an offensive weapon in company, attempted carjacking, and using a firearm without authority. The Court of Criminal Appeal quashed the murder conviction in February 2007 and ordered a new trial. When the matter returned, the Crown indicated it would accept a plea of guilty to manslaughter, which the offender offered at the earliest opportunity.
Liability for manslaughter rested on the offender's participation in a joint criminal enterprise to unlawfully possess firearms. The agreed facts established that the offender contemplated the possibility that one of the group might discharge a revolver, though without intent to kill or cause grievous bodily harm. No physical act by the offender contributed to the shooting itself.
Legal Issues
- What sentence was appropriate for manslaughter arising from joint criminal enterprise, where the offender did not fire the weapon and lacked intent to kill or cause grievous bodily harm
- How the principle of totality applied given the offender was already serving sentences for related offences
- Whether parity with the sentence imposed on the offender's brother, Motekiai Taufahema (sentenced separately for his participation in the same events), was appropriate
- What commencement date should apply to the manslaughter sentence, given the offender had been in continuous custody since 2002
Decision
Grove J accepted the agreed statement of facts and the specified basis of liability. The offender's culpability was limited to participation in the joint enterprise to possess the firearms and his contemplation that one might be discharged, without any intent to cause death or serious harm. The court was careful to note that no physical act by the offender contributed to the homicide.
On totality, Grove J noted that the existing sentences for the related offences remained in effect (save for the firearm possession sentence, which had expired) and that these required consideration when determining cumulation and concurrency. The court accepted that the commencement date for the manslaughter sentence should be 27 March 2005, consistent with the date Wood CJ had applied when imposing the now-quashed murder sentence. This reflected the three years the offender had already spent in custody before that date.
Both the Crown and defence accepted parity with the sentence imposed on the offender's brother. Grove J found this approach consistent with his own assessment, while acknowledging that the offender's overall term encompassed some offences not charged against his brother. The court also acknowledged the victim impact statement from Senior Constable McEnallay's father, noting the continuing grief and loss experienced by the family.
Orders Made
- The offender was sentenced to imprisonment for manslaughter, comprising a non-parole period of 7 years commencing 27 March 2005 and expiring 26 March 2012, with a balance term of 4 years commencing 27 March 2012
- Earliest eligibility for release to parole specified as 26 March 2012
Key Takeaways
- Liability for manslaughter through joint criminal enterprise can arise where an offender participates in the foundational unlawful act (here, joint possession of firearms) and contemplates the possibility of a co-offender discharging a weapon, even without intent to kill or cause grievous bodily harm
- A sentencing court applying the totality principle must take into account existing sentences the offender is already serving when determining the appropriate structure of any new sentence, including its commencement date
- Parity between co-offenders sentenced for the same criminal events remains a relevant consideration, even where the offenders face different charges arising from those events
- Where a murder conviction is quashed and the offender pleads guilty to manslaughter at the first available opportunity, that timing is treated as a mitigating factor going to the plea discount
- Grove J incorporated by reference the subjective findings made by Wood CJ at CL at the original sentencing, rather than restating them, reflecting an efficient approach to sentencing remarks in a retrial context
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), s 7(1) (possession of a firearm without a licence or permit)
- Crimes Act 1900 (NSW), s 93G(1)(b) (firing a firearm in or near a public place)
Cases:
- No cases were formally cited in the judgment text provided.