Tuivaga v R

HOEBEN CJ at CL:

On 11 November 2013 Price J sentenced the applicant to imprisonment with a non-parole period of 4 years and 6 months, to date from 15 June 2013 and to expire 14 December 2017, with an additional term of 2 years and 23 days to expire on 6 January 2020.

The applicant seeks leave to appeal from that sentence on the following grounds:

On 12 October 2010 the applicant was at his home, having finished work for the day, with the co-offenders Karl Brown, Brad Trawin-Hadfield, Samuel Lockett and Richard Barnes. Also at home was the applicant’s de facto wife and their children. All five offenders left the home in a motor vehicle belonging to his de facto wife. The group went to a location in Mount Pritchard where the applicant became aware that Brown intended to confront the deceased, who lived next door, over money and text messages sent to Brown by the deceased. The five offenders left the house together. The applicant was aware that a physical confrontation with the deceased was a real possibility.

The applicant became involved in the physical confrontation. While so involved, he was grabbed by the deceased and he pushed the deceased. The applicant had his head down in the fight when he heard a loud bang. All the offenders then ran to the motor vehicle at which time one of the offenders shouted at Lockett saying “Why the fuck did you do that?”. One of the offenders then shouted “He shot him”. The applicant noticed that he had pellet wounds from the shot. The applicant was arrested at 8.10pm when he was in the same vehicle. He was taken to hospital where he was treated for his gunshot wounds.

The applicant agreed that he was a party to a joint criminal enterprise to assault the deceased and that he participated by becoming involved in the fight. He did not foresee either death or grievous bodily harm as possible consequences, or that another party to the agreement would employ the violence applied by Lockett, or it being achieved by the use of a gun.

The applicant agreed with the four others to assault the deceased, with whom the applicant had no disagreement. When he left the next door house, he was aware that a physical confrontation with the deceased was a real possibility. Although he did not know that a firearm was in the possession of his co-offenders, he realised that the deceased was being exposed to an appreciable risk of serious injury. He joined in the attack upon the deceased who was outnumbered. He pushed the deceased and continued his involvement in the fight until the shotgun discharged. His close proximity to the deceased at that time is evidenced by the pellet wounds he suffered.

Having made the above findings of fact, the primary judge identified the following matters which mitigated the objective seriousness of the offence. The agreement to assault the deceased was not entered into until shortly before he was attacked. The applicant did not foresee that any of his co-offenders would employ the degree of violence used by Lockett, or that the degree of violence would be achieved by the use of any type of weapon, or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise.

Although the plea was late, his Honour allowed a discount for its utilitarian value of 12.5 percent.

The applicant did not give evidence during the sentence proceedings. This required the primary judge to assess his subjective case by reference to general background information and a report from a psychologist, Mr Watson-Munro.

The applicant was educated at Toongabbie East Primary School and Macquarie Boys Technical High School where he completed his HSC at the age of 17. He then became involved in labouring and factory work for several years and in other employment where he remained for about four years before his dismissal. He then returned to labouring work. He was aged 29 at the time of the offence and was 32 at the time of sentence.

He had a previous criminal record. There was a conviction at the Parramatta District Court on 27 May 2011 for one count of reckless wounding while in company on 4 October 2009. The agreed facts for that offence disclosed serious violence by the applicant. His record also revealed driving offences of a serious nature that were committed on 27 December 2011. The particular significance of these offences is that the applicant was on bail for the deceased’s murder when they were committed.

Because of the applicant’s previous offence of violence, his Honour gave more weight to personal deterrence and the protection of society than otherwise would have been the case. His Honour took into account that at the time of the manslaughter, the applicant was on bail for the offence of reckless wounding while in company, and that it was an aggravating factor that the offence was committed while he was at conditional liberty.

The primary judge noted that the applicant had been in a de facto relationship for nine years at the time of sentence and had three daughters aged seven, three and two. His fiancé was seriously ill with cervical cancer and was presently undergoing chemotherapy. His Honour took into account those difficult personal circumstances, although he appreciated that they were not “exceptional” so as to be taken into account as a mitigating consideration.

His Honour found that by his plea of guilty the applicant accepted responsibility for the part that he played in the death of the deceased and that his plea indicated contrition for the offending. His Honour took the plea into account as reflecting his remorse and that Mr Watson-Munro reported that the applicant expressed deep remorse for what had occurred. His Honour made a finding that the applicant was remorseful and took that into account as a mitigating factor.

His Honour was not prepared to make a positive finding that the applicant had good prospects of rehabilitation. This was because he had engaged in serious offending while subject to bail. His Honour found that the applicant’s disregard on two occasions for his conditional liberty detracted from an optimistic view being taken concerning rehabilitation. His Honour concluded that he was unable to make a positive finding that the applicant was unlikely to re-offend, and that he had good prospects of rehabilitation. His Honour considered that his prospects of rehabilitation remained uncertain.

His Honour had regard to what Mr Watson-Munro said about the applicant’s conditions of incarceration. He had been a segregation prisoner for the entirety of his confinement. He noted that the applicant was given a difficult time by Corrective Services personnel and by other prisoners. At the time of the report, the applicant had been locked in his cell for 23 hours a day. The applicant reported to him that he had no friends in gaol.

Mr Watson-Munro made a formal diagnosis of a depressive illness, which was aggravated by the applicant’s conditions of imprisonment. At the time of examination, Mr Watson-Munro found that the applicant was still suffering from “severe depression” with a particular concern referable to active suicidal ideation. The psychologist opined that the applicant required treatment in addition to the psychotropic medication which he was taking and that such treatment should involve cognitive behavioural therapy.

There was other material which confirmed that the applicant was held in segregation, had been the subject of a non-association order and was locked in his cell for 23 hours a day. As a result of the conditions of his incarceration, the applicant had little contact with other inmates and was unable to access programs or courses. His ability to exercise and make telephone calls was restricted. His Honour accepted that it was more likely than not that the applicant would continue to serve his sentence under these conditions which were more difficult than the custodial conditions of the general prison population.

The primary judge noted that the applicant did not submit that his mental condition was relevant to the commission of the offence but that it made a custodial sentence more burdensome for him. His Honour accepted that submission and that the conditions of his custody would exacerbate his depression. He found that the hardship that the applicant experienced in custody was a matter in mitigation. His Honour was not prepared to find that this reduced the weight to be given to general deterrence because his mental condition had no causal relationship with the commission of the offence.

The primary judge was conscious of the principle of parity and referred to it in the sentence judgment as follows:

There was an issue before the primary judge as to the commencement date of the applicant’s sentence. His Honour reviewed the issue as follows:

The applicant submitted that his Honour had made a factual error as to the period of time that the applicant had been imprisoned before the imposition of the manslaughter sentence. The applicant submitted that his Honour had overlooked the period from 28 December 2011 to 27 September 2012 when he was in custody serving sentences. This nine month period was for charges of driving while disqualified and dangerous driving. The applicant submitted that the effect of overlooking that period of imprisonment was that the applicant had been in continuous custody since 28 December 2011, not 27 September 2012, to which his Honour referred when reviewing the applicant’s previous custody. The applicant submitted that this oversight must have impacted on the question of the commencement date of the sentence because as his Honour stated, the issue of totality was relevant.

In support of the submission, the applicant relied upon R v MMK [2006] NSWCCA 272; 164 A Crim R 481 where the Court said:

The applicant submitted that the totality of sentence needed to be informed by accurate information as to the actual incarceration that an offender is subject to. In this instance his Honour did not take into account the two offences of drive whilst disqualified and drive vehicle recklessly or in a manner dangerous for which he also received sentences. Accordingly, his Honour’s assessment of issues of totality and the concurrence and accumulation of sentence were flawed.

The applicant submitted that his Honour’s application of the principles of totality to the question of the commencement date of the sentence was infected with error because he failed to take into account that the applicant had spent the period from 28 December 2011 to 27 September 2012, an extra 9 months, in continuous custody.

There is a preliminary difficulty with this submission in that it is obvious from [28] – [29] of his Honour’s sentence judgment that his Honour was conscious of the principles of totality and proportionality and was also aware of the substantial period of pre-sentence custody which the applicant had served. Being aware of all of those matters, his Honour determined not to backdate the commencement date of the manslaughter sentence beyond 15 June 2013. In that regard, the applicant accepted that the choice of the commencement date for the manslaughter sentence was a discretionary matter for the primary judge.

Apart from that difficulty, it is not at all clear that the “error” sought to be relied upon by the applicant did in fact occur. It may well be that his Honour did not specifically refer to each period of imprisonment at [28], but he was clearly aware that the applicant had been in continuous custody since 28 December 2011. He was specifically told this by counsel for the applicant and it was readily apparent from the applicant’s custodial history which was tendered in the proceedings. The “sentences summary” on page 1 of that document made that clear.

What his Honour was doing at [28] is clear when one looks at the submissions which had been made on behalf of the applicant by his counsel in the sentence proceedings. By reference to various periods of custody, which he submitted were referable to the manslaughter matter alone, counsel for the applicant submitted to his Honour that the total period in custody referable to the manslaughter offence was 1 year and 129 days. On that basis, counsel for the applicant contended that the manslaughter sentence should be backdated to 11 June 2012 (i.e. the date of his submission 18.10.13 less the 1 year and 129 days). The point that his Honour was making at [28] was that this calculation was not correct since the initial period that he had included in his calculation (i.e. from 4.10.2010 to 14.10.2011) was not referable solely to the manslaughter since the applicant was serving a non-parole period for the wounding offence. It followed that the only period solely referable to the manslaughter was the initial period of 11 days after his arrest and the period since 26 June 2013 when the non-parole period for the driving matters expired.

If there were any doubt that his Honour was well aware that the applicant had been in custody from 27 December 2011 it is resolved by what his Honour said at [13]:

Moreover, at [29] his Honour went on to state that as the applicant had served sentences for reckless wounding and driving offences since he went into custody, it was necessary to consider the principle of totality. His Honour was clearly aware that the driving offences and malicious wounding offence were discrete and independent acts of criminality from the manslaughter.

Being aware of those matters, it is clear that his Honour intended to entirely accumulate the manslaughter sentence on the driving matters, except for the eleven days of pre-sentence custody. He gave express reasons for so doing at [29]. It was open to his Honour to do this in the exercise of his discretion. For the applicant to succeed on this ground, he needed to show that it was not open to his Honour to exercise the discretion in the way in which he did. Unless he could point to a specific error (which he could not) it was necessary for him to establish that the discretion was wrongly exercised on a House v R [1936] HCA 40; 55 CLR 499 ground. This he has not done.

This ground of appeal has not been made out.

The applicant submitted that the aggregate period to be served by him, taking into account the earlier sentences for the “driving matters”, amounted to 8 years 23 days with a non-parole period of 6 years. Rounding the sentence down to 8 years, the total non-parole period amounted to exactly 75 percent of the overall term. Accordingly, his Honour’s sentence failed to achieve his stated aim, namely a variation in the statutory ratio to allow him a longer period of parole supervision for psychological treatment.

The applicant submitted that at no point in his sentence judgment did his Honour refer to the impact of the overall non-parole period on the period which he had specified for parole supervision. The applicant submitted that this important issue was not given consideration. He submitted that because his Honour had found special circumstances, arising from his need for appropriate psychological treatment upon release, it was important that there be a real reduction in the proportion of time he was to spend in custody as opposed to the period he was to spend on parole supervision.

It is clear that the basis for his Honour’s finding that there should be a variation in the statutory ratio between the non-parole period and the balance of term for the manslaughter offence was the need for appropriate psychological treatment. If one looks at the manslaughter sentence alone, the finding of special circumstances saw a reduction in the statutory ratio from 75 percent to 68 percent.

His Honour also expressly stated that the non-parole period of 4½ years was the minimum period the applicant must spend in custody in order to appropriately reflect the criminality of the manslaughter offence. The effect of the applicant’s submission is that a finding of special circumstances, on the basis explained by his Honour, required his Honour to take into account not only a reduction in the statutory ratio for the manslaughter offence, but a reduction in the statutory ratio having regard to the total period continuously spent or to be spent in custody.

For the reasons already given in respect of Ground of Appeal 1, his Honour was clearly aware of the period of continuous custody served by the applicant. He was also clearly aware that he was accumulating the manslaughter sentence almost fully on those previous periods of incarceration. It is against that background that he specifically found that the non-parole period of 4 years and 6 months was the “minimum period” that the applicant should spend in custody to appropriately reflect the criminality of the manslaughter offence. In those circumstances, it was not necessary for his Honour to refer to the impact of the combined periods in custody on the manslaughter parole period. It follows that his Honour did not err in not doing so.

A similar situation arose in Stoeski v R [2014] NSWCCA 161 where Adamson J (with whom Bellew J and I agreed) said that a failure to specifically refer to such a calculation does not necessarily establish error:

It is not only implicit in what his Honour said but express that he regarded 4 years and 6 months as the minimum period the applicant should spend in custody in order to appropriately reflect the criminality of the offence. This is in line with the observation of Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704:

This ground of appeal has not been made out.

It is appropriate to deal with this ground before considering the parity ground since a complaint of disparity accepts that the sentence is otherwise appropriate (England v R; Phanith v R [2009] NSWCCA 274 per Howie J (with whom McClellan CJ at CL and Fullerton J agreed) at [22]; Jimmy v R [2010] NSWCCA 60; 269 ALR 115 at [251]; Corda v R [2014] NSWCCA 281 at [59]).

The applicant submitted that given the difficult conditions of custody experienced by him and to be experienced by him, together with his mental illness, a sentence of 6 years 6 months and 23 days with a non-parole period of 4 years and 6 months was manifestly excessive.

As has been pointed out by this Court on a number of occasions, the task of an applicant relying upon such a ground is a difficult one in that what has to be established is that the sentence was “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321).

His Honour referred specifically to the applicant’s conditions of custody and to his mental illness. He specifically found that the applicant’s sentence would weigh more heavily upon him as a consequence and that the conditions in custody would exacerbate his depression. He expressly took these matters into account as part of the hardship that the applicant would experience in custody as a matter of mitigation.

What his Honour was also required to do was be appropriately mindful of the value that the community placed upon the preservation of human life and the need to denounce the applicant’s conduct by a sentence appropriate to the circumstances of the offence. What cannot be ignored is that the applicant joined in a cowardly attack on the deceased, who was seriously outnumbered, in circumstances where he realised that the deceased was exposed to an appreciable risk of serious injury. At the time the applicant was on bail for the offence of reckless wounding while in company.

The applicant has not demonstrated that in all the circumstances the sentence imposed by his Honour was unreasonable or plainly unjust.

This ground of appeal has not been made out.

The applicant submitted that the parity principle applied when his sentence was compared with that of his co-offender, Barnes, and relied upon the statement of principle in Postiglione v R [1997] HCA 26; 189 CLR 295 where Dawson and Gaudron JJ said at 310:

The applicant submitted that his Honour breached the parity principle, even though the sentence imposed on Barnes of imprisonment with a non-parole period of 5 years and a balance of term of 2 years was longer than his. The applicant submitted that the reduction of 6 months in the sentence imposed upon him, as compared with that imposed on Barnes, failed to properly reflect the extra hardship that he would endure during his sentence from both the harsh custodial conditions and because of the mental condition from which he suffered.

The applicant noted the following similarities:

His Honour found that the co-offender Barnes’ criminal record was marginally more serious than that of the applicant.

Despite those similarities, the applicant submitted that his was a significantly more powerful subjective case than that of Barnes. The matters he relied upon were that his partner, who had the care of their three children, was seriously ill. He was suffering hardship in custody, above and beyond the general prison population, by virtue of his being in protective custody and because of his mental illness.

The applicant submitted that he had a justified sense of grievance when comparing the sentence imposed on him with that imposed on Barnes. He submitted that 6 months did not adequately reflect the difference in their subjective cases and that his sentence should be appropriately reduced to reflect that difference.

It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant.

In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be “gross, marked or glaring” (Tan v R [2014] NSWCCA 96 at [39]). In Mammone v R [2013] NSWCCA 95 at [45] – [46] Latham J (with whom Button J and Grove AJ agreed) said:

As already indicated, the primary judge considered the issue of parity when sentencing both Barnes and the applicant. He noted the similarities and differences in their cases. It is not without significance that counsel for the applicant made the following submission to the primary judge:

His Honour not only accepted that submission, he acted upon it. After finding the applicant and Barnes equally culpable, his Honour observed that the applicant was 2 years older than Barnes but that Barnes’ prior criminal record was marginally more serious than the applicant’s. After specifically referring to the applicant’s conditions of custody and his mental condition, his Honour concluded that “the hard custodial conditions under which the [applicant] is to serve his sentence justify a lesser sentence than that to be imposed upon Barnes.”

The sentence imposed upon the applicant reflected this by having a non-parole period which was 6 months shorter than that of Barnes and an overall term which was just less than 6 months shorter than that of Barnes.

While this Court or another Court of Criminal Appeal may have exercised its discretion differently and have allowed for a slightly longer or shorter differential between the two sentences, that is not the test. The difference in outcome between the applicant and Barnes is explicable on the basis of his Honour’s instinctive synthesis of various features in respective cases and the weight to be accorded to them. I am not satisfied that there is a proper basis for the applicant having a legitimate sense of grievance. There is, in my opinion, no gross or marked disparity between the two sentences.

This ground of appeal is not made out.

The orders which I propose are:

R A HULME J: I agree with Hoeben CJ at CL.

WILSON J: I agree with Hoeben CJ at CL.