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District Court 23 October 2019

R v Taufahema

[2019] NSWDC 622

Assault & violenceTheft & property
PAROLE PERIOD — STANDARD NON PAROLE PERIOD

Citation: R v Taufahema [2019] NSWDC 622
Court: District Court of New South Wales
Date: 23 October 2019
Judge: Bennett SC DCJ

Background

The offender pleaded guilty upon arraignment to one count of assault with intent to rob, inflicting grievous bodily harm while armed with an offensive weapon (a piece of brick), contrary to s 98 of the Crimes Act 1900. The offence was committed on 16 August 2017 at Telopea and carried a maximum penalty of 25 years imprisonment. The offender pleaded guilty approximately one week before her trial was due to commence.

The offence arose from a joint criminal enterprise involving two co-offenders, Jay Mathew Fordham and John Piukala, who had already been sentenced by the same judge. Before entering her plea, negotiations between the defence and the Director of Public Prosecutions sought to have the Crown accept a guilty plea to a lesser offence under s 96 of the Crimes Act, on the basis of the offender's comparative role. The Crown declined and maintained the s 98 charge.

The offender had an extensive criminal history and was on parole at the time the offence was committed. Her parole was subsequently revoked, and she later received a separate fixed term of imprisonment for concealing a serious indictable offence committed by another. These overlapping periods of custody raised a discrete question about when the sentence for the present matter should commence.

  • What commencement date should apply to the sentence, given the offender's overlapping periods of custody arising from parole revocation and a separate subsequent offence?
  • How should the standard non-parole period of seven years for the s 98 offence inform the sentencing exercise under the framework established in Muldrock v R?
  • Where did this offence fall in the range of objective seriousness?
  • Were there special circumstances justifying a departure from the statutory non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999?
  • How should the co-offenders' sentences inform the sentence imposed on the offender?

Decision

Commencement date. The court determined that the sentence should commence on 12 April 2018, rather than from the date the offender entered custody specifically for the present matter (12 August 2018). Applying the principles from Callaghan v R [2006] NSWCCA 58, the court recognised a discretion to backdate the commencement date in appropriate circumstances, having regard to the sequence and nature of the offender's various periods of custody.

Standard non-parole period and objective seriousness. The standard non-parole period of seven years represents the midpoint of objective seriousness for the offence. The court applied the Muldrock framework, assessing objective gravity by reference to the nature of the offending and the relevant factors in s 21A of the Crimes (Sentencing Procedure) Act 1999, excluding matters personal to the offender except where causally connected to the commission of the offence. The court also drew on Tepania v R [2018] NSWCCA 247 for the proposition that factors such as motive and matters personal to the offender with a causal connection to the offending remain relevant when assessing overall gravity.

Co-offender comparisons. The two co-offenders had each received a head sentence of six years and nine months, with non-parole periods of five years and three years respectively. The disparity in non-parole periods reflected pre-sentence custody and the totality principle in Piukala's case. The court treated these sentences as a relevant reference point when fixing the appropriate sentence for the offender.

Special circumstances and rehabilitation. The court found special circumstances, accepting that the offender had genuine remorse and contrition, had engaged with programs in custody, and required an extended parole period to consolidate her rehabilitation. The court noted that while the plea was not early, the offender had accepted liability for a serious offence and had not sought to minimise her role or shift blame to her co-offenders. All sentencing purposes were engaged, including denunciation, general and specific deterrence, and punishment, alongside the rehabilitative objective underpinning the finding of special circumstances.

Orders Made

  • The offender was convicted of the offence under s 98 of the Crimes Act 1900.
  • Non-parole period of 4 years and 6 months imprisonment, commencing 12 April 2018 and expiring 11 October 2022.
  • Further period of imprisonment of 3 years commencing at the expiration of the non-parole period, expiring 11 October 2025.

Key Takeaways

  • The District Court confirmed that sentencing courts retain a discretion under Callaghan v R to backdate a sentence's commencement date where an offender has served overlapping periods of custody arising from parole revocation and subsequent offences, with no single rule governing all cases.
  • Under the Muldrock framework, the standard non-parole period benchmarks the midpoint of objective seriousness and must be taken into account as part of the sentencing exercise, with the court required to record reasons for any departure from that benchmark.
  • As affirmed in Tepania v R, matters personal to the offender that are causally connected to the commission of the offence remain relevant when assessing objective gravity, even for standard non-parole period offences.
  • A finding of special circumstances, justifying a non-parole period below the s 44 statutory ratio, was supported here by the offender's rehabilitation progress in custody, genuine remorse, and the need for an extended period of supervised parole.
  • Sentences imposed on co-offenders in the same joint criminal enterprise serve as a relevant reference point, but differences in pre-sentence custody and totality considerations can produce legitimate disparities in non-parole periods.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 96, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 44, Part 4 Division 1A

Cases
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Markarian v The Queen [2005] HCA 25
- Muldrock v R [2011] HCA 39
- Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) 164 CLR 465