Citation: R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 24 November 2016
Judge(s): Hall J, McCallum J, R S Hulme AJ (unanimous)
Background
Three offenders, each aged 18 at the time with no prior convictions, participated in a series of armed robberies and attempted armed robberies across Sydney between 7 and 22 October 2014. The offences targeted 24-hour service stations and a McDonald's restaurant. The group's method involved driving to premises, covering their faces, and entering with a crowbar and a realistic-looking painted cap gun. Across eight charged offences and several Form 1 matters (additional offences taken into account at sentencing), employees were threatened, at least one was physically assaulted, and significant cash and goods were taken.
In the District Court, Phegan ADCJ imposed aggregate sentences under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Schaafhausen received 5 years imprisonment with a non-parole period of 2 years and 6 months. Faaoloii and Tuala each received 4 years and 6 months with non-parole periods of 2 years and 3 months. All sentences commenced on 24 October 2014.
The Crown appealed all three sentences to the Court of Criminal Appeal, contending they were manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred in the approach taken to setting indicative sentences for individual offences within an aggregate sentence
- Whether the aggregate sentences imposed were manifestly inadequate having regard to the gravity and number of the offences
- How the Court of Criminal Appeal should exercise its re-sentencing discretion where the offenders' parole eligibility dates were imminent at the time of the appeal
Decision
The Court of Criminal Appeal, in reasons delivered by R S Hulme AJ (with Hall J and McCallum J agreeing), found error in the sentencing judge's approach to the indicative sentences underpinning the aggregate terms. The indicative sentences for individual offences did not adequately reflect the seriousness of those offences, and the resulting aggregate sentences were manifestly inadequate for a course of serious, organised, repeat armed robberies.
The Court noted the offending involved multiple victims, significant threats of violence, actual physical assault in at least one instance, and a coordinated joint criminal enterprise carried out over a sustained period. Although the offenders' youth and absence of prior criminal history were genuine mitigating factors, these did not justify sentences of the length imposed.
On re-sentencing, the Court extended the total terms for each offender but declined to extend the non-parole periods. The reason for preserving the non-parole periods was the practical reality that, by the time of the appeal hearing, the offenders' eligibility for parole was imminent. The Court acknowledged this produced non-parole periods that were proportionally smaller fractions of the new total sentences, but considered this appropriate in the exercise of its discretion in a Crown appeal. The Court noted that if the offenders did not conduct themselves properly on parole, the extended total terms would operate.
Orders Made
Mr Schaafhausen:
- Crown appeal allowed
- Sentence set aside and replaced with a non-parole period of 2 years and 6 months from 24 October 2014, plus a balance of term of 4 years and 6 months from 24 April 2017
Mr Faaoloii:
- Crown appeal allowed
- Sentence set aside and replaced with a non-parole period of 2 years and 3 months from 24 October 2014, plus a balance of term of 3 years and 9 months from 24 January 2017
Mr Tuala:
- Crown appeal allowed
- Sentence set aside and replaced with a non-parole period of 2 years and 3 months from 24 October 2014, plus a balance of term of 3 years and 9 months from 24 January 2017
Key Takeaways
- Error in setting indicative sentences for individual offences within an aggregate sentence can infect the resulting aggregate term and justify appellate intervention, even where the aggregate structure itself is a legitimate sentencing tool under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Manifest inadequacy in Crown appeals involving multiple serious offences can be established where indicative sentences fail to reflect the objective gravity of each constituent offence.
- In exercising re-sentencing discretion on a Crown appeal, the Court of Criminal Appeal confirmed it may increase total terms while preserving non-parole periods where imminent parole eligibility makes extending the non-parole period impractical or disproportionate.
- Youth and the absence of prior convictions remain genuine mitigating factors, but they do not overcome the weight of sustained, organised, repeat offending involving threats of violence and physical assault against multiple victims.
- The extended balance of term following parole eligibility serves a residual protective function: where an offender does not comply with parole obligations, the longer full term will operate.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentencing)
Cases:
- Doumit v R [2011] NSWCCA 134
- Khawaja v R [2014] NSWCCA 80
- Qing An v R [2007] NSWCCA 53
- R v CJP [2003] NSWCCA 187
- R v Glyn Morgan Jones; R v Anthony Hili (No 2) [2010] NSWCCA 195
- R v Harris [2007] NSWCCA 130
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49