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Supreme Court 31 August 2007

R v. Taufahema

[2007] NSWSC 959

HomicideFirearms & weapons
CRIMINAL LAW MANSLAUGHTER SENTENCE

Citation: R v Taufahema [2007] NSWSC 959
Court: Supreme Court of New South Wales (Common Law Division)
Date: 31 August 2007
Judge(s): Michael Grove J

Background

The offender was one of four men in a reportedly stolen vehicle approached by Senior Constable Glenn McEnallay during a highway patrol stop in Hillsdale on 27 March 2002. The vehicle contained four loaded revolvers, and one of the other occupants, Sione Penisini, shot the officer five times. Senior Constable McEnallay died from his wounds approximately one week later.

The offender's liability for the death arose not from any act of shooting, but from his participation in a joint criminal enterprise to possess the revolvers. That possession, the court found, carried with it a foreseeable risk that the firearms would be used to cause death or grievous bodily harm to a person who sought to prevent the group's escape.

The case had a protracted procedural history. The offender was originally convicted of murder at trial, had that conviction quashed by the Court of Criminal Appeal (which entered an acquittal), saw the High Court reverse that acquittal and order a new trial, and ultimately pleaded guilty to manslaughter when a fresh indictment was presented in July 2007.

  • What sentence was appropriate for manslaughter arising from joint criminal enterprise involving unlawful firearm possession?
  • What weight should be given to the utilitarian value of a guilty plea entered at the first available opportunity, given the circumstances of the re-prosecution?
  • How should prior sentences (including the now-quashed murder sentence, the firearm possession sentence, and unrelated offences) affect the starting date and overall structure of the manslaughter sentence?
  • Did special circumstances exist to justify a departure from the standard statutory ratio between the non-parole period and the balance of sentence?
  • What did the principle of totality require when assessing the aggregate effect of all sentences?

Decision

Grove J accepted an agreed statement of facts under which the offender admitted complicity in the death through his participation in the joint enterprise to possess the revolvers. The court found that carrying loaded revolvers in circumstances where the group sought to evade police created a foreseeable risk of lethal use, bringing the death within the scope of the enterprise.

The court identified significant aggravating features, including that the victim was a police officer killed in the execution of his duty, that multiple loaded firearms were present, and that the offender had prior convictions. The court also noted mitigating factors, including the guilty plea and aspects of the offender's personal circumstances.

Grove J assessed the head sentence at thirteen years and six months before discount, then reduced it to eleven years to reflect the utilitarian value of the guilty plea. The court found special circumstances warranting a reduced non-parole period, producing a non-parole period of seven years with a balance term of four years.

The sentence was backdated to 27 March 2005 to reflect time already served under related sentences, including the (now-expired) fixed term for firearm possession and the period served under the subsequently quashed murder sentence. Applying the totality principle, Grove J noted that across all relevant matters, the offender faced a minimum of ten years in custody from the date of his arrest in 2002.

Orders Made

  • The offender was convicted of the manslaughter of Glenn McEnallay.
  • Sentenced to imprisonment with a non-parole period of seven years, commencing 27 March 2005 and expiring 26 March 2012.
  • Balance term of four years, commencing 27 March 2012.
  • Earliest parole eligibility date specified as 26 March 2012.

Key Takeaways

  • Complicity in manslaughter can arise from participation in a joint criminal enterprise to possess firearms, where it was objectively foreseeable that those firearms might be used to cause death or grievous bodily harm during the enterprise.
  • A guilty plea entered at the first realistically available opportunity, even in the context of a re-prosecution following acquittal and a High Court appeal, attracted a discount for its utilitarian value.
  • Where an offender has already served sentences for related offences arising from the same events, including a sentence later quashed on appeal, the sentencing court may backdate the commencement of the new sentence to avoid a result that is disproportionate in aggregate.
  • Special circumstances justifying a reduced non-parole period were found on the facts, permitting a departure from the standard statutory ratio between the parole period and the balance of the sentence.
  • The totality principle requires the sentencing court to look beyond each individual sentence and assess the overall burden of imprisonment across all related and concurrent matters.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the provided text, though reference was made to the statutory formula governing non-parole periods and the definition of "firearm" in the relevant firearms legislation.

Cases:
- No cases were formally cited in the provided text. The judgment references prior proceedings involving co-offenders before Wood CJ at CL and Sully J, as well as the Court of Criminal Appeal decision of 8 May 2006 and the High Court decision of 21 March 2007 in the same matter.