Regina v Penisini; Regina v Lagi; Regina v John Taufahema

HIS HONOUR: At his arraignment, on 21 March 2003, the offender Sione Penisini pleaded guilty to the murder of Senior Constable Glenn Edward McEnallay, and to one count of using a firearm, not being authorised to do so.

On 13 August 2003, he also pleaded guilty to assaulting Lamia Kassis with intent to take her motor vehicle, and, without her consent, attempting to take it for the purpose of driving it, being armed with an offensive weapon and being in the company of John Taufahema.

Following a trial, which concluded on 8 September 2003, the offender John Taufahema was found guilty of the murder of Senior Constable McEnallay. Previously, that is at the commencement of the trial, he had pleaded guilty to the following counts: (a) In company with Sione Penisini, using an offensive weapon with intent to prevent their lawful apprehension; (b) Assaulting Lamia Kassis with intent to take a motor vehicle, and without her consent attempting to take it, for the purposes of driving it, being armed with an offensive weapon, and being in the company of Sione Penisini; and (c) Using a firearm without authority.

The offender Meli Lagi was acquitted, at trial, of the murder of Senior Constable McEnallay, but was found guilty of an alternative count of using an offensive weapon, in company with John Taufahema, with the intention of preventing their lawful arrest. He had earlier pleaded guilty, that is, at the commencement of the trial, to one count of possessing a firearm without authority.

Each of the offences occurred between about 5:50 pm and 6:00 pm, on the evening of 27 March 2002. A further accused, Motekiaa Taufahema still awaits trial, his intended trial together with the offenders John Taufahema and Meli Lagi, having been severed due to the illness of his counsel.

Each of the three offenders now mentioned, appears for sentence in relation to the charges, of which he has been convicted at trial, or to which he has pleaded guilty. Facts

On 27 March 2002 Senior Constable McEnallay was driving an unmarked police patrol car in Bunnerong Road, Matraville. Near the intersection with Military Road he observed a green Holden Commodore sedan, registration number AJK 32M. The possible presence of this vehicle in the area had previously been reported to him by an off duty police officer, Constable Dietrich, who had seen it at about 5:30 pm travelling at speed, and somewhat erratically, in Botany Road, Matraville.

Senior Constable McEnallay asked for a vehicle check to be made and was advised that it had been reported as stolen.

He followed the green Commodore into Botany Road, and then right into Beauchamp Street. The two vehicles stopped at the lights controlling the intersection of Beauchamp Street and Denison Road. In the meantime he had asked for assistance from other vehicles, and had also requested the driver of a caged police vehicle, which was in the area, to drop back, as he did not want the occupants of the green Commodore to be aware that they were being followed.

In Dennison Street, at about 5:51:50, Senior Constable McEnallay activated his siren and lights, announcing his pursuit of the green Commodore, which made a right hand turn at speed into Grace Campbell Crescent. While attempting this turn the vehicle struck the gutter, or a traffic island, and came to a stop at about 5:52:10, as a result of damage occasioned to a wheel, which effectively immobilised it.

At this stage Penisini, who was armed with a .38 Smith and Wesson revolver, exited the green Commodore and immediately fired 5 shots, in quick succession, at the driver's side window of the police vehicle which had come to a stop about 10 metres away. Senior Constable McEnallay, who had been unable in the time available to draw his own weapon, or to seek a position of safety, suffered gunshot wounds to the chest and head which led to his death, seven days later on 3 April 2002. The five shots, of which four struck home, were fired in a public place, in the midst of a residential precinct and in an area where there were a number of pedestrians and children, some of whom gave evidence in the trial of Lagi and Taufahema.

Penisini, along with the other occupants of the green Commodore who included Lagi and John Taufahema, ran from the vehicle in a general easterly direction, through some units in Nilson Avenue and Grace Campbell Crescent. On their way, Penisini dropped his handgun, and a pouch containing a number of .45 calibre and .38 calibre cartridges, on the footpath outside 9 Grace Campbell Crescent. Eight other live rounds were recovered on the following day, four of which had been dropped on the roadway outside 9 Nilson Avenue, and the remainder of which had been dropped in the rear yard of those premises.

Lagi was seen to drop his weapon, a .38 Smith and Wesson revolver, in the garden of 12 Grace Campbell Crescent, on his way to a residence at 5 Rhodes Street, where he managed to hide from police, in a laundry, for several hours, before eventually making his way home. Before doing so, he exchanged his clothes for clothing which he found in the laundry. He was not arrested until 3 April, although prior thereto arrangements had been made, through his solicitor, for him to surrender to police on 4 April.

John Taufahema and Penisini also made their way towards Rhodes Street. They were pursued on foot by Senior Constable Day and Constable Kolosque. While moving through the small area of park, which runs between the premises 7 and 9 Grace Campbell Crescent respectively, and up a hill to Rhodes Street, John Taufahema presented his handgun, a .38 Smith and Wesson five round revolver, at Constables Day and Kolosque and threatened to shoot them if they did not back off.

Both officers courageously maintained their pursuit. They had drawn their own service weapons, and repeatedly warned Penisini and Taufahema to stop and to drop the weapon which the latter was holding.

When they reached Rhodes Street, the two offenders made their way north, still pursued by Constables Day and Kolosque. A motor vehicle driven by Lamia Kassis was observed to be slowing for a speed hump. John Taufahema made his way to the driver’s side of this vehicle, and pointing his weapon at Ms Kassis, instructed her to get out of the vehicle. She complied with this request. In the meantime Penisini attempted to force his way into the front passenger seat.

At this point Constables Day and Kolosque caught up with the men and began to struggle with them. Senior Constable Day attempted to subdue Penisini, and eventually did so after hitting him over the head with his service pistol and spraying him with OC spray. Constable Kolosque fought with Taufahema, who was still holding his handgun and pointing it at the two officers. They struggled over the ignition key, and at one stage Taufahema managed to get the vehicle into motion, but it moved backwards, striking a vehicle behind it.

Eventually Taufahema was overpowered by Constable Kolosque, with the assistance of Senior Constable Day, who had come to his aid, although not before being struck on the head several times with the butt of a service weapon and also being sprayed with OC spray.

In the meantime, Penisini, who had been sitting for a while on a fence, no doubt being still affected by the spray, had moved away from the vehicle into the park to the east of Rhodes Street. He was pursued by Senior Constable Day, and with the assistance of Constable Rowbottom, was arrested in that park. The weapon of John Taufahema was recovered from the vicinity of Ms Kassis’ vehicle.

It is inappropriate to make any further reference to Motekiaa Taufahema, since he is yet to face his trial, other than to observe that he was seen to be in the company of the three offenders now before the Court, and to have been the driver of the green Commodore, at about 5 pm. He was arrested in the rear yard of premises at 31 Rhodes Street, moments after the arrest of John Taufahema, and a .357 Magnum six-chamber revolver, which he was seen to drop in the garden of 33 Rhodes Street, was recovered in that location.

A search of the green Commodore revealed that contained within it were gloves, hats and an ice hockey mask, items capable of being used as disguises. Additionally and adjacent to, or in, Ms Kassis’ vehicle were found another pair of gloves and a cap. Penisini was seen to be wearing sunglasses.

Each of the four weapons recovered this night had been stolen from a security company two weeks earlier. The weapons of the two offenders now before the Court were fully loaded and were not fired during the relevant events. Nor was that of Mottekiaa Taufahema.

It was the possession of one of these handguns by Lagi, which gave rise to the firearm offence to which he pleaded guilty. The offences concerning the vehicle of Ms Kassis, and the use of a firearm, to which each of Penisini and John Taufahema pleaded guilty, related to the events which I have outlined as having occurred in the vicinity of the speed hump in Rhodes Street.

The offence of using an offensive weapon, in company, with intent to prevent lawful apprehension, to which John Taufahema pleaded, related to his presentation of a weapon, at Constables Day and Kolosque, in the park, associated with the threats which he made at that time.

John Taufahema was convicted of murder upon the basis either of being an aider or abettor of Penisini, in relation to the offence of felony murder, or as party to a joint enterprise with the other occupants of the green Commodore, for the use, by one of them, of a weapon with intent to prevent their lawful apprehension, having in contemplation, on his part, the possibility of the weapon being used intentionally in a way that would result in the death of, or grievous bodily harm to, Senior Constable McEnallay. Each alternative was left to the jury, and although there is little to differentiate between them in terms of objective gravity, I would regard the aider and abettor alternative as marginally more serious, so far as it would involve the provision of assistance or encouragement, with the knowledge that Penisini was intending to shoot at Senior Constable McEnallay with the intention of hitting him.

Finally, the alternative to the count of murder, of which Meli Lagi was found guilty, namely the use of an offensive weapon, in company with John Taufahema, with intent to prevent their lawful apprehension, related to his participation, either as an aider and abettor, or as a party to a joint enterprise with the occupants of the green Commodore for the use of a weapon by its presentation, in either case with the intention of avoiding lawful arrest by Senior Constable McEnallay, but without any contemplation of it being used in a way that might result in death or grievous bodily harm, or knowledge that it would be fired at such officer.

The maximum available sentences for the offences for which sentences are to be imposed are as follows: (a) Murder ( Penisini and John Taufahema ): s 18(1)(a), 19A(1) and (2) Crimes Act 1900 (NSW) – maximum penalty: imprisonment for life; (b) Use Offensive Weapon in Company with Intent to Prevent Lawful Apprehension ( Meli Lagi in relation to the events concerning Senior Constable McEnallay, and John Taufahema in relation to the events concerning Constables Day and Kolosque): s 33B(2) Crimes Act 1900 – maximum penalty: imprisonment for 15 years; (c) Attempt Car Jacking, Being Armed and in Company ( Penisini and John Taufahema ): s 154C(1) and (2)/344A Crimes Act 1900 - maximum penalty: imprisonment for 14 years; (d) Unauthorised Possession of Pistol : ( Lagi ): s 7(1) Firearms Act 1996 – maximum penalty: imprisonment for 14 years; (e) Unauthorised Use of Pistol ( Penisini and John Taufahema ): s 7(1) Firearms Act 1996 – maximum penalty: imprisonment for 14 years.

Each of the offenders before the Court was on Parole at the time of the offences, for which they were taken into custody, in the case of Penisini and John Taufahema on 27 March 2002, and in the case of Lagi, on 3 April 2002. They have been held in continuous custody since those dates. The position in relation to Parole, which was, in the case of each offender, revoked following their arrest, is as follows: Penisini (i) Parole expiry date 19 October 2005; (ii) Released to parole on 19 October 2001; (iii) Parole Revoked on 2 April 2002; John Taufahema (i) Parole expiry date 28 July 2002; (ii) Released to parole on 10 October 2001; (iii) Parole revoked on 2 April 2002; Meli Lagi (i) Original parole expiry date 9 February 2003; (ii) Released to parole on 8 February 2000; (iii) Parole revoked on 4 April 2002;

In Lagi's case, he was sentenced in the Sydney District Court for an offence of armed robbery, on 1 November 2002, while serving the balance of parole, and while on remand for the current offences. The sentencing order in relation to that additional offence was one of imprisonment for four years with a non-parole period of three years. The new non-parole period so fixed is due to expire on 20 May 2005, and the parole expiry date for that offence is 20 May 2006. As a consequence, between 4 April 2002 and 20 May 2002 (1 month and 16 days) he was held in custody serving the balance of parole and also on remand for the present offences. Thereafter he has been serving the sentence imposed in November 2002.

To these circumstances I will return so far as they are relevant in fixing the appropriate dates for the commencement of the sentences which I must impose.

Before turning to the objective criminality and subjective circumstances of each offender, I make it clear that I do not take into account, as compounding the objective severity of their offences, that they had in their possession items capable of being used as disguises. Nor do I take into account any suspicion, which one might entertain, that they were en route pursuant to some plan which they may have had to commit an armed robbery, or some other offence involving those items and/or the weapons which each had.

To do so would be to sentence them for offences with which they have not been charged. The presence of the gloves, mask and caps in the car, and the possession of an unauthorised hand gun by each offender, had a particular relevance, in combination with the fact that each was on parole, so far as those circumstances provided a powerful motive for them to use the weapons to avoid arrest and inevitable revocation of their parole.

I similarly make it clear that I do not take into account, as compounding their criminality, any suspicion that any of the offenders may have been party to stealing the four handguns two weeks earlier, or that they may have been complicit in an apparent attempt by the owner of the green Commodore to commit an insurance fraud.

There was no evidence to support any such proposition. No charge was preferred in relation thereto, and the Crown did not make any suggestion that they were culpable in respect of any of those matters.

The evidence concerning the theft of the handguns was relied upon solely to support the inference that, having come from the one source, and being in their possession, each offender knew the other to be armed.

The evidence concerning the ownership of the green Commodore, and its collection by the offenders from a location at Blacktown, was similarly relevant to show that they had spent some time together in the vehicle before the offences, and as supporting inferences that they had not come together by chance, and that they each knew what was being carried in the vehicle including the handguns. Obviously the fact that the vehicle had been reported as stolen by its owner was also relevant as to why it was that it had been pursued by Senior Constable McEnallay.

I confirm that I have given careful consideration, for the limited purposes permitted by law, to the victim impact statements which were read in Court by Robert McEnallay, the father of Senior Constable McEnallay, and by Amanda Mahon, who had been that officer’s partner and intended wife.

Together they disclose, in a most graphic and tragic way, the enormous and continuing loss, which has been occasioned by the wholly unnecessary murder of a fine young man, who had earned the respect of his family, his partner, his peers and the community.

I cannot, in these remarks on sentence, even begin to reproduce, in any adequate way, the depth of the loss which they have described. Their statements however remain on the public record as a tribute to the man they loved, and it is better that they be allowed to speak for themselves as to the consequences of the brutal, cowardly and senseless acts of the offenders in this case.

I shall now deal with the offenders individually, observing that each falls to be sentenced by reference to the provisions of the amended s 21A of the Crimes (Sentencing Procedure) Act 1999 which commenced on 1 February 2003. The amended provisions concerning the setting of standard non-parole periods embodied in Division 1A, and the new s 44, which also commenced on 1 February 2003 do not, however, apply, since they relate only to offences committed after that date. Sione Penisini

On any view, Sione Penisini’s culpability, as the offender who fired the fatal shots, was extremely high, and in excess of that of the other co-offender, John Taufahema, who also stands convicted of murder.

Police officers who are carrying out their duty are entitled to expect the maximum protection from the courts, in imposing condign sentences upon offenders who use firearms to resist their lawful apprehension. Murder, in any circumstances, is the most serious crime in the criminal calendar. Its seriousness is significantly increased when it is committed by an offender who, when faced with imminent arrest by a person who is known to be a police officer engaged in the execution of his duty, uses a firearm or other weapon in a manner which brings about death.

In the present case, I am satisfied that not only was Penisini guilty of felony murder, arising from his use of a weapon in circumstances which would attract s 33 of the Crimes Act 1900. Despite his assertion to the contrary, in the course of giving a history to Katherine Barrier, and despite the submission of his counsel that his intention should be found to have been an intention to inflict grievous bodily harm, I am satisfied beyond reasonable doubt that Penisini shot at Senior Constable McEnallay with the intention of killing him. That is an inevitable inference to be drawn from the concentration of shots within the narrow target area, identified by the bullet holes in the windscreen, in front of the position where Senior Constable McEnallay was sitting, and from the fact that he was seen to discharge the shots in quick succession, from a distance of about 10 metres, without any prior warning.

These circumstances place his offence within the upper range of seriousness for an offence of murder. The compelling need to ensure that the sentence, in a case such as the present, reflects a very substantial element of general deterrence, in addition to the considerations of personal deterrence, retribution and punishment, is long established. In Regina v Kevin Garry Crump, NSWCCA, 7 February 1975, the Court, comprised by Street CJ, McClemens CJ at CL, and Begg J said: “It is unnecessary to reiterate that any malicious wounding or malicious shooting will be viewed seriously by the Court and will attract a heavy punishment. But where, as here, the prospective victims of the wounding or shooting are police officers purporting to act in the execution of their duty, the case becomes even more serious. The community is dependent to no small extent upon an efficient and courageous police force for the protection of lives and property of members of the community. The authority of members of the police force in the maintaining of law and order must be respected by individual members of the community, and that authority will be supported by the courts.”

That statement has been applied in decisions such as Regina v E J Smith (1981) 7 A Crim R 253, Regina v Myers NSWCCA, 13 February 1990, Regina v Nasif NSWCCA 10 March 1995, and Regina v Rees , NSWCCA 22 September 1995. In the last mentioned of these cases, Gleeson CJ with whom Grove and Simpson JJ agreed, said: “The courts have a responsibility to support the work of the police, who, in the discharge of their duties, must deal with violent people, and who are frequently exposed to danger. The deliberate killing of a police officer warrants severe retribution.”

See also my own observations in Regina v Edigarov (2001) 125 A Crim R 551 at 558 and Regina v Sloane (2001) 126 A Crim R 188 at 193. The existence of this consideration as an aggravating factor is confirmed by its express inclusion among such factors in s 21A(1)(a) of the Crimes (Sentencing Procedure) Act .

The other offences relating to the use of a firearm, and the attempted hijacking of Ms Kassis’ motor vehicle, were similarly very serious, particularly the latter, so far as it involved the two aggravating circumstances that it occurred in company, and that it involved the use of an offensive weapon. It was an offence of a kind which would inevitably occasion considerable fear on the part of a victim. It is such that any sentence imposed in relation to it must also convey a firm message as to general and personal deterrence.

The Crown submitted that this is a case where there were present the following factors of aggravation mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act : (a) The victim was a police officer acting in the execution of his duty; (c) the offences involved the use of a weapon; (d) the offender had prior convictions; (e) the offences were committed in company; (i) the murder was committed without regard to public safety; and (j) the offender was on conditional liberty.

Additionally it submitted that there were aggravating circumstances so far as the shooting was done to conceal the commission of other offences, namely the possession by the occupants of the vehicle of firearms, and so far as the murder of Senior Constable McEnallay involved a deliberate shooting of a police officer at a time when he was defenceless.

Each of these matters, I accept to have been present, although there is clearly an overlap between them, such that they should not have an individual compounding effect, or indeed any effect where they are an element of the offence.

I have already sufficiently noted the most relevant aggravating factors concerning the manner in which the individual offences were committed. Otherwise I take the view that the objective criminality of Penisini is significantly compounded by the fact that the three offences were committed while he was on parole for the earlier very serious offences, in respect of which he had been sentenced by her Honour Judge Tupman, in the District Court, on 26 May 1998, that being one of the additional factors of aggravation within s 21A(2) of the Crimes (Sentencing Procedure) Act, relied upon by the Crown.

Those offences, to which the offender had pleaded guilty at committal, comprised one count of aggravated robbery, two counts of aggravated robbery with wounding, and one count of robbery while armed with a dangerous weapon, and were committed between 14 September 1997 and 9 October 1997. Additionally, 10 other offences were taken into account on a Form 1. They comprised one offence of take and drive without consent, two offences of robbery while armed with an offensive weapon, one offence of robbery with wounding, four offences of aggravated robbery and two offences of aggravated robbery with wounding. They had been committed, on occasions by the offender alone, and on other occasions in company, and they were offences in which knives or pistols, or replica pistols, had been used. They related to the period between 14 September 1997 and 20 October 1997, and in the course of some of them victims had been tied up, gagged, locked in a cool room, bashed or punched, and slashed with a knife.

The specific offences for which the offender stood for sentence before her Honour Judge Tupman were particularly serious, having been committed at a service station, a video store, and a Kentucky Fried Chicken store. In one instance, an attendant at the service station had been punched and kicked, and his hands and feet tied by electrical tape by one or other of the two offenders, who had been involved. The two offences at the video store were also committed in company, and involved an occasion when Penisini slashed the cheek of one employee, while holding him in a headlock, before tying his hands behind his back. Another employee was threatened with being stabbed and forced to lie on the floor.

The final offence, at the Kentucky Fried Chicken outlet, was similarly committed in company, and in the course of it one 17 year old employee was pulled by the back of the neck, and had a gun held to her head while being required to fetch some keys. Another young employee was forced to the floor by an offender, who placed his foot on her head. The manager was threatened by an offender with a knife, and by a man holding a gun who pushed her to the ground. Two other young male employees were also threatened, and one of them had his head stomped on when he looked up in response to a cry from one of the female employees. He suffered a cut to his lip, and his front teeth were chipped.

Judge Tupman appropriately observed that the community would expect these offences to be treated seriously, and noted that there were features of aggravation, including elements of gratuitous violence, having been directed at people who had offered no resistance. In sentencing Penisini, her Honour found that there were some subjective circumstances which ought to be taken into account, including the fact that he had been aged 18 years at the time of the commission of the offences, that he had no prior record, that this would be his first time in prison, that the offences had been committed over a period of only 5 weeks, in order to finance a relatively new addiction to illegal drugs, that he had the support of a fine law abiding family, and that he had experienced something of a clash in cultures as a first generation Tongan migrant. In addition, favourable consideration was given to the utilitarian value and contrition associated with the early pleas, and to the fact that, but for his co-operation, some of the matters may not have been finalised so easily.

Of immediate relevance was her Honour’s assessment, now shown to have been unfounded, that, because of the family support and successful management of his drug problem, he had prospects of rehabilitation, which she described, at one point, as “real” and at another point, as “excellent”. In this regard she accepted that he intended to involve himself in a programme directed towards Tongan youth, and to hold himself out as an object lesson as to how their lives can become unstuck as a result of being involved in the use of illegal drugs. He failed, however, to volunteer his services in this respect when released on Parole, and his offer was unfortunately not pursued by Reverend Lagu. He has repeated that offer, so a letter from Mr Waterhouse, the Honourary Consul General for Tonga would suggest, although whether he will carry it through this time is yet to be seen.

It was as a result of these circumstances, although not in a way that accorded with the decision in Pearce v The Queen (1998) 194 CLR 610, or with the correct approach when Form 1 offences are taken into account, ( Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518) that concurrent sentences, each of eight years imprisonment with minimum terms of four years, were imposed in relation to the four offences to which Penisini had pleaded. As I have already noted, those head sentences were fixed to expire on 19 October 2005, and the minimum terms were fixed to expire on 19 October 2001.

As Judge Tupman had found, Penisini, who is now aged 24 years, does indeed come from a law abiding family, which occupies a position of considerable respect in the community at large, and within the Tongan community. His father, who is an elder in the Uniting Church, and his eldest brother, gave evidence before me to the effect that he was one of five children, who had been well behaved as a young man, while the family lived in the country. However his behaviour began to deteriorate after the family moved to Sydney and he entered high school at Blacktown.

When his marks were seen to drop, and it was found that he was truanting, a decision was made, when he was aged about 15 years, to send him to a Church boarding school in Tonga for two and a half years, in order to appreciate the value of receiving a good education. Upon his return to Australia, he expressed some resentment for having been sent away, and he began to associate with peers who were not regarded as suitable company.

While in prison for the earlier offences, he expressed regret to his brother for what he had done. That brother thought that, upon his release, he had appeared to be happy at home, and to have been somewhat quieter than previously. He obtained employment with his brother, but after a short time he took over the role of looking after that brother’s children.

Following the commission of the present offences, his brother said that he impressed upon him the “need to be true to himself”, and to confess if he had been the man who shot Senior Constable McEnallay. It was his account that since doing so he has expressed remorse for what happened, and has flagged a desire to apologise to the parents of Senior Constable McEnallay.

Statements prepared by Mr Penisini senior, which were adopted by him in the witness box, were tendered, which confirmed the matters of which his eldest son had given evidence, including the expressions of remorse, the attempts which had been made, earlier in his life, to bring him up as a Christian, and to remove him from the bad influences which had affected his schooling in this country, and the reaction which he appeared to have had as a result of being sent back to Tonga.

Although Penisini has not himself given any evidence confirming his remorse, there was some additional evidence of its existence and of his desire to participate in a victim conference, which was led through a lecturer in Biblical studies, Jione Havea, and through a Minister of the Uniting Church Reverend Lagu; through the tender of the progress notes of his counselling officer at Goulburn Correctional Centre; and finally through a letter from the Honourary Consul General for Tonga.

A report was tendered from a clinical psychologist, Katherine Barrier, which noted that, despite the initial difficulties which Penisini had confronted when sent back to Tonga, he had eventually come to love the life there. It was on his return to Sydney he said that he had experienced difficulty in accommodating to the peer culture, and that he had teamed up with associates who were driving fast cars and wearing expensive designer clothes and jewellery, and who had ready access to lots of money. It was while he was in year 11 at school that he joined with those associates, in the activities which saw him imprisoned for the offences which he committed during that year. She noted that he now claimed to have accepted full responsibility for the murder of Senior Constable McEnallay and to have understood the impact of the offences on his parents and family members.

He expressed to her a wish to undertake further studies to Higher School Certificate level. Upon testing, he was found to be of sound intellectual functioning, and to have the capacity to benefit from educational and vocational programmes. He gave no indications of psychotic thought disturbance or of suffering from any physical or mental illness. Miss Barrier’s report concluded with the following passage of relevance: “ … By Sione’s account a desire to emulate his peer associates at the time and his use of cocaine underlay his earlier armed robbery offences. Sadly it would seem that despite attendance at a number of rehabilitation programmes during his last incarceration he did not put these lessons into practice on his release. During the period he has spent in custody on this occasion he has reflected on the enormous gravity of this crime and expresses remorse and some understanding of the grief and loss being experienced by the deceased’s family. This young man demonstrates an array of positive features. He is articulate, socially adept, has sound intellectual functioning and posseses prowess and keen interest in sport, especially rugby union. He has a supportive family. It would seem his preference for the company, values and customs of those who commit criminal offences underlies his own behaviour. Measures of current clinical states on the personality assessment indicate Sione is experiencing some psychological discomfort and this will provide a good starting point for therapeutic intervention with this young man to continue to develop empathy for others and insight into his own maladaptive behaviours.”

What has not been explained in this report, or elsewhere, is why it was that, despite the experience of being imprisoned after a series of disturbingly violent offences, and of being provided with counselling and supervision on parole, Penisini elected to reoffend in a particularly grave way, while still on Parole. As I have already observed, that last mentioned circumstance is a matter of serious aggravation, for the reasons discussed in Regina v Readman (1990) 47 A Crim R 181, Regina v Vranic NSWCCA 7 May 1991, Regina v Tran [1999] NSWCCA 109, and Regina v McVittie [2002] NSWCCA 344; and see also s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

In Regina v Moffitt (1990) 20 NSWLR 114, Badgery-Parker J (at 128) observed that in such a case the offender should “not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in … abusing his parole.”

Additionally, as Howie J recently noted in Regina v Shankley [2003] NSWCCA 253 (at para 30): “It is well established that the fact that an offence was committed while the offender was at large in the community and subject to a bond, bail or probation is an aggravating feature of the offence committed. It is part of the objective criminality of the offence. Such a feature generally requires that the sentence acts as a deterrent to others in the community who are similarly on conditional liberty. It also may raise a consideration of the need for personal deterrence in a particular case.”

Where the fact of reoffending while on Parole is taken into account as an aggravating circumstance, leading to an increase in the sentence which might otherwise have been imposed, then it has become the accepted practice to backdate the sentence, so as to take into account the time spent in custody after the commission of the fresh offence. Otherwise, as explained in Regina v Kaiva NSWCCA 9 November 1998, the offender risks being penalised twice for the same offence. Such approach also avoids the uncertainty which may otherwise attach in determining when an offender, whose parole has been revoked, might have been re-admitted to Parole, with the consequent difficulty of determining an appropriate commencement date for any accumulation of sentence, which in any event could not, in the circumstances postulated, be later than the date on which the fresh sentence was imposed (s 47(4) Crimes (Sentencing Procedure) Act ).

So far I have noted the aggravating factors in relation to the offences for which Penisini stands to be sentenced. I turn next to the subjective considerations which he is entitled to have regarded as mitigating factors.

First and foremost, they include his pleas of guilty, which can properly be regarded as having been offered relatively early in the proceedings, allowing for the circumstance that the final plea followed upon discussions between counsel which occurred after the plea to the primary count had been entered at arraignment. These pleas, along with his acknowledgement of having been the shooter, provided some measure of assistance to the Crown, and had a utilitarian value not only in relation to the proceedings so far as they related to him, but also so far as they led to a narrowing of the issues, and reduction in the time taken for the trial of the co-accused.

That utilitarian value is not to be discounted by the circumstance that the case against him was, despite the submissions of his counsel to the contrary, overwhelming, in relation to all counts, given the circumstances of his pursuit and arrest and the presence of gunshot residue on his gloves and clothing: Regina v Carter [2001] NSWCCA 245. However the strength of the Crown case does impact upon the extent of contrition or remorse which is reflected by a plea given in circumstances where a conviction is inevitable.

I also accept that Penisini entertains genuine remorse in relation to these offences, even though that has not been personally expressed by him, in the presence of those who were directly affected by his offences. I see no reason to disbelieve his father or brother, or the other witnesses who have been informed of his remorse. Although the pleas might not of themselves have carried much weight in this regard, the fact that he responded to his brother’s instruction, to be true to himself, by acknowledging that he was the shooter, also tends to confirm the fact of his remorse and contrition.

Apart from his pleas and the assistance associated therewith, and the degree of remorse which he has expressed, the only other factor of mitigation which falls within the express provisions of s 21A(3) of the Crimes (Sentencing Procedure) Act, upon which he can rely is circumstance (b), namely that the offences were not part of a criminal activity that was planned or organised in any meaningful way.

Independently of that provision, however, are the circumstances that he is still only 24 years of age and that the sentences which must necessarily be imposed will mean that he will spend, in prison, what otherwise could have been the rewarding years of his life, when he might have acquired employment and a family.

I do not believe, despite his expressions of remorse, that he has much in the way of insight into his ongoing criminality. Nor do I understand why it is, despite every opportunity having been given to him, in the course of his upbringing, that he has betrayed his family, and his community, by choosing the lifestyle of a violent repeat offender.

The very nature of the present offence, involving the cold blooded murder of a police officer to avoid arrest, his failure to respond to parole, or to be deterred by the earlier period of imprisonment, and his preference for associating with other criminals, each of whom was on this occasion armed, leads me to the conclusion that his prospects of rehabilitation are somewhat bleak, although they cannot be dismissed, with any degree of certainty, as negligible.

He has been assessed as having sufficient intelligence and social adeptness to respond to therapeutic intervention, but whether he will do so is entirely a matter of choice for him.

In assessing his future dangerousness, I am to a degree hampered by the lack of any psychiatric opinion, or psychological report, which directly addresses that issue. Certainly there is nothing before me to suggest the existence of any disturbance of mind or other personality disorder which would, on the one hand, point to him being inherently and incurably dangerous, or, on the other hand, to the possibility of any such condition being addressed by appropriate treatment.

In those circumstances, the only assessment that can be made of his future dangerousness depends upon the circumstances of the present offences, and his antecedent criminal history: Regina v Garforth NSWCCA 23 May 1994 at pages 12 to 13. As Howie J also observed in Regina v Shankley (supra) (at para 31), citing Veen v The Queen (No 2) (1988) 164 CLR 465: “The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that ‘retribution, deterrence and protection of society may indicate a more severe sentence is warranted’.”

In my view those matters do establish that, currently, he does present some risk of being a danger to the community of the kind referred to in Veen v The Queen (No. 2) , and of being a person who, unless he undertakes a real change in his approach to life, is likely to reoffend in a serious way. That does not justify preventive detention, but it is a circumstance properly to be taken into account in fixing an appropriate sentence, and in particular, in considering whether he comes within the ambit of s 61(1) of the Crimes (Sentencing Procedure) Act , to the point where the sentence for the murder count, for which the Crown contends, namely life imprisonment, should be imposed.

The sentence of life imprisonment, which now carries with it the prospect of never being released, is reserved for the worst cases of murder and for those which answer the requirements of the provision last mentioned, namely, that the level of culpability in the commission of the offence is “so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

I have given very careful consideration to the question whether the present offence of murder falls within the level of culpability that would call for the maximum sentence, either as a “worst category” case or by reference to s 61(1) of the Crimes (Sentencing Procedure) Act .

Some assistance in that regard is to be gained by reference to the cases in which the maximum sentence has been imposed for offences of murder. Relevantly they include Regina v Garforth NSWCCA 23 May 1994, Regina v Milat NSWSC 27 July 1996, Regina v Street NSWCCA 17 December 1996, Regina v Fernando (1997) 95 A Crim R 533, Regina v Leonard NSWCCA 7 December 1998, Regina v Rose [1999] NSWCCA 327, Regina v Glasby (2000) 115 A Crim R 465, Regina v Smith [2000] NSWCCA 202, Regina v Harris (2000) 121 A Crim R 342, Regina v Lewis [2001] NSWCCA 448, Regina v Knight [2001] NSWSC 1011, Regina v Miles [2002] NSWCCA 276, Regina v Sievers [2002] NSWSC 1257, Regina v Valera [2002] NSWCCA 50, and Regina v Ngo [2003] NSWCCA 82.

As Rose, Miles and Harris disclose, the fact of a plea of guilty does not automatically mean that the maximum sentence is not available. Rose was, however, a case involving five murders committed by a career criminal, each of which was of a planned gangland kind. Miles was a case in which the offender committed a second murder after having escaped from custody while serving a determinant sentence for an earlier murder. Sievers was also a case of an offender who had committed a second murder after having served a sentence for a previous similar murder.

Harris involved three murders which involved defenceless victims, and which had been planned by an offender who harboured homicidal thoughts and had only a limited understanding of his behaviour. Street involved the brutal murders of two defenceless women, by an offender with a long-standing record of criminality, including a terrifying record of violence towards women. Leonard also involved two murders by a man found to be a psychopath who happened to be of a similar age to Penisini, the first involving the random shooting of a person with a bow and arrow, which the offender found to have been pleasurable, and the second occurring in the course of the commission of a robbery upon a vulnerable taxi driver; while Milat was a case of the serial killing of a number of young backpackers by a very disturbed and dangerous offender. Valera was also a case of double murder, involving the added elements of torture and gratuitous violence, which had been motivated by hatred towards persons believed to have been of a particular sexual orientation.

Fernando involved the abduction of a defenceless nurse from a hospital, and her murder with a machete after she had been subjected to seriously degrading sexual assaults by two offenders with lengthy prior records, extending over an hour or so, in circumstances of premeditation and planning. Garforth also involved an abduction, followed by a sexual assault and murder, by an offender with a long criminal record, of a nine-year-old girl. Knight involved a premeditated and brutal murder and dismemberment of the deceased by an offender with a grossly disturbed personality and propensity for violence.

Lewis, Glasby and Smith , each involved gangland or contract killings, and Ngo involved a premeditated and organised assassination of a political rival.

These cases, on any view, all fall into the worst category of murder, or involved offenders whose serious ongoing danger to the community was patently obvious.

The present offence of murder, insofar as Penisini is concerned, attracts a particular degree of heinousness from the reason for its commission, namely to avoid arrest by a police officer who was known to be acting in the course of his duty. Had there been any real degree of premeditation or planning in the present case, then, notwithstanding the plea of guilty and remorse, I would have imposed a life sentence, similarly to the cases mentioned. In that regard, as was recognised in Leonard , Rose , Fernando and Harris , there are cases where the offence is so heinous that the subjective circumstances including any plea of guilty should be entirely discounted.

Although the Crown submitted that the three offenders here had been involved in preplanning whatever enterprise it was that they had in mind, when setting out in the Commodore with items of disguise and loaded revolvers, that, even if true, would not establish that they had made any arrangement, before the pursuit began to use a weapon or weapons to shoot at a police officer in order to prevent their lawful apprehension.

It may be that they had discussed that possibility, or had even agreed upon using their weapons in such a fashion earlier in the day, but there was no evidence of that being the case. Nor was there any proper basis to find that the decision by Penisini to fire at senior Constable McEnallay, occurred otherwise than in haste, in the heat of the pursuit, and without much opportunity for sensible reflection on his part, or for that matter, upon the part of his co offenders.

It does not follow from this assessment of the circumstances in which the shooting occurred, and of his antecedent history which related to a tumultuous period of about five weeks, that Penisini should receive a determinant sentence other than one at the very top of the range for sentences of that kind, although falling short of a life sentence, the consequences and significance of which, both for the offender and the correctional system, were identified in Garforth (at p 11) and in Harris at para 124.

For the reasons outlined, and taking into account particularly the plea of guilty and the age of Penisini, I have decided that a determinant but severe sentence should be imposed for the murder.

While the firearm offence and the carjacking offence are properly considered as intrinsically interconnected, they involved further serious acts of criminality on Penisini's account. True it is that they occurred within minutes of the murder, and were similarly motivated by his attempts to escape arrest. However, the consequent increase in his overall objective criminality, this evening, arising from their commission, cannot be ignored. That circumstance should, in my view, be reflected in the way that the sentences are structured.

I would add, in relation to the firearm offence, that reference to the Judicial Commission statistics would tend to suggest that insufficient consideration has been given to the degree of seriousness with which the legislature regards such offences, as indicated by the maximum available sentence of imprisonment for 14 years. In part, that may be due to the fact that the population of recorded cases, where non parole periods or fixed terms were imposed, is very small (only 7 in number), or to the fact that some of those cases may have predated the increase in the maximum sentence. In those circumstances, and bearing in mind the serious aggravation involved where the offender who uses or possesses an unlicensed handgun was on parole, I regard it as necessary to impose a sentence above the range which the statistics would otherwise disclose.

In this regard, the observations of Howie J in Regina v Shankley (supra), citing Regina v Oliver (1980) 7 A Crim R 174 and Regina v H (1980) 3 A Crim R 53, are apposite: “a consideration of the maximum penalty prescribed for an offence is fundamental to a determination of the appropriate sentence to be imposed…It represents the public’s view of the seriousness of the crime.” (At para 19)

That was a case where, upon a crown appeal, a sentence for a firearm offence, by an offender who had been subject to a bond for similar offences, was increased, after allowance for double jeopardy, from a term of imprisonment for four years with a non parole period of 3 years to one of imprisonment for six years with a non parole period of two years and three months, the latter being significantly reduced because of the accumulation of the sentence upon that imposed for another offence, so as to restore the statutory ratio between the total effective sentence and the total non parole period.

The decision underlines, in a clear and obvious way, the proper approach to be taken to firearm offences in the case of offenders such as the three persons now before the Court who were on conditional liberty, particularly where they had prior convictions involving the use or possession of firearms, and it provides a much more certain guide than anything which might emerge from the sentencing statistics.

In fixing the sentence for the respective firearm offences of each of Penisini and of the co-offenders, who I shall deal with next, I have not overlooked the consideration that a s 7 offence can be dealt with in the Local Court. The present offences were, however, properly to be dealt with upon indictment, and it is not the case that a sentencing judge dealing with an offence so charged, is confined to the maximum penalty available in the Local Court: Regina v Doan (2000) 50 NSWLR 115.

I propose to allow a combined discount for the utilitarian value of the pleas and for the contrition which Penisini has demonstrated, in relation to his three offences, of 20%. I decline to allow any greater discount, since I am satisfied that the case is so serious that any further reduction would not adequately reflect the objective criminality involved, or the interests of the public: Regina v Thomson and Houlton (2000) 49 NSWLR 383 at para 157.

I note the submission that, since Penisini is currently held at the HRMU Unit at Goulburn Correctional Centre as an extreme high risk prisoner, and has limited access to other prisoners or programs, special circumstances should be found, justifying a reduction in the statutory ratio between the non-parole period and the head sentence.

In this regard evidence was received from Superintendent Stanford, the Operational Head of Security and Investigations with Corrective Services, to the effect that Penisini has been held at the High Risk Management Unit Goulburn, by reason of the nature of the offence, with an A1 classification.

He explained that in the normal course, depending upon his general conduct, his response to the various programmes, and the impression of those running the center as to whether he is progressing or not, he would be expected to pass through those programmes within 9 to 10 months after being sentenced, after which time he would be eligible to move through the normal classification system to less restricted centres.

As Superintendent Stanford’s evidence showed, and as the schedule of the three levels for each of the three programme stages also demonstrated, his confinement to date, and while he works through these programmes, has been, and will continue in the short term to be, considerably more restricted and arduous than that applicable to other main stream prisoners. It includes a greater proportion of time locked in a cell, significantly less access to other inmates, reduced buy-ups, greater security in relation to contact visits and escorted movements, reduced access to other activities and employment, and a degree of curtailment of various other less significant privileges and opportunities otherwise available to serving prisoners.

Additionally, in the absence of an education officer in this section of the gaol, it means that the offender cannot be supplied with educational activities, other than limited computer and library access, although it seems that he is about to commence a positive lifestyles programme.

While there are specific sanctions and rewards for compliance, they have no particular relevance since similar considerations apply across the system and their imposition or grant are largely in the hands of the inmate, who can select whether to behave and to respond favourably to what is available, or to fight the system.

There was some additional evidence to the effect that Penisini has been regarded, so far, as an “ideal inmate”, who at one stage had elected to move backwards in the level attained so as to assist another prisoner who was having difficulties.

There was also evidence that his future progression through the system will depend upon the decision of a committee within the Centre, as well as the assessment, from time to time of the Serious Offenders Review Board, aided by the monthly reviews of the Case Management Team and the reports of his case officer.

It may be accepted that the confinement of a prisoner in conditions of greater restriction, without access to the programmes or facilities available to other prisoners, can make his or her imprisonment more arduous, and that such fact may qualify as a special circumstance: Regina v Lewis (1998) 100 A Crim R 361, and Regina v Berry [2000] NSWCCA 451.

However, as Howie J said in Regina v Wahabzadah [2001] NSWCA 253, in a case involving protective custody for a first time offender: “19. Although the fact that the applicant had placed himself into protective custody in the gaol was a matter relevant to the question of special circumstances, it was not decisive. It will not always require the sentencing judge to find special circumstances justifying a reduction in the non-parole period. Much will depend upon the particular circumstances such as the reasons for the prisoner being in protection, the prospects of his remaining in protection throughout the sentence and the actual effect that it has upon the prisoner and his prospects of reform. What weight such a factor will have will also depend upon the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period.”

Similar considerations apply where the reason for segregation or limited access to programmes is attributable to factors other than the need for protection.

Penisini is not a first time offender, he has proved himself to be dangerous, and it is the severity of his offences that have seen him held to date, in a more secure and arduous way than other offenders. In the light of the evidence from Superintendent Stanford, I do not expect that his custodial position will remain unaltered through the entirety of his sentence, and I see no reason why he should not, in due course, be eligible for the normal re-classification procedures, or why he should be denied access to the usual programmes. However, the fact that he has been held in the HRMU for a considerable period prior to sentence, and will now take some time to progress to A2 status, does justify some minor adjustment as a special circumstance.

I am not satisfied that there is any other reason to vary the effective non-parole period, beyond a small adjustment, in order to reflect the special circumstance of accumulation.

The potential period of release on parole which I have in mind is a significant period, and is well sufficient to cater for the extended supervision and counseling which will be needed to facilitate the offender’s return to the community. I accept, consistently with the decision in Regina v Simpson (2001) 53 NSWLR 704, that this is not the sole perspective from which the existence or otherwise of special circumstances should be determined. I am not, however, persuaded that the age or background, or any other subjective features, when considered in the light of the offender’s antecedent criminal history, and defiance of his earlier opportunity of release on parole, constitute special circumstances in this case. Moreover, I am satisfied that any further reduction of the non-parole period would result in a sentence that would be disproportionate to the objective circumstances of the case.

Sione Penisini, for the offence of unauthorised use of a firearm, I sentence you to a fixed term of imprisonment for five years to date from 27 March 2002. In that regard I have given particular attention to the fact that you reoffended while on parole for offences, some of which had involved the use of firearms.

For the s 154C attempted carjacking offence I sentence you to a concurrent fixed term of imprisonment for six years, similarly to date from 27 March 2002.

I decline to fix a non-parole period in relation to either sentence, since they will be wholly absorbed in the sentence next imposed. I have determined that the sentences for these two offences should be served concurrently, since they involved a single continuing episode of criminality, occurring after the offence of murder, which needs to be considered as a separate or discrete criminal act.

For the murder of Senior Constable McEnallay, I sentence you to imprisonment for 34 years to date from 27 March 2004, and to expire on 26 March 2038.

I set a non-parole period of 23 years similarly to date from 27 March 2004 and to expire on 26 March 2027, which will be your earliest parole release eligibility date.

The sentences which I have specified are those which I consider individually appropriate for the three offences, taking into account, on each occasion, the circumstances of aggravation and of mitigation which I have noted. The sentence for the offence of murder has been directed to be served partially cumulatively upon the sentences for the other offences, in order to reflect the totality of the criminality involved, in accordance with the principles in Pearce v The Queen (supra).

I have backdated the sentence for the first two offences to the date of your arrest. I acknowledge that for part of the sentences you will be serving the balance of parole for earlier offences. However, since that factor has been taken into account as an aggravating feature of the further offences, that is, as a matter which justifies heavier sentences than would otherwise have been imposed, it would be inappropriate to postpone their commencement date.

The total sentence is accordingly one of imprisonment for 36 years, with an effective non-parole period of 25 years. John Taufahema

This offender’s objective criminality in relation to the murder of Senior Constable McEnallay was properly accepted by the Crown to have been less than that of Penisini, it being conceded that he did not have any specific intention of that officer being killed or occasioned grievous bodily harm.

The basis upon which the jury found him guilty was not disclosed by its verdict. However, I find that his culpability arises out of the circumstance that, in the course of the pursuit, he became party to a joint enterprise whereby one or other of the offenders in the Commodore would use a weapon, or present it, in circumstances where he personally contemplated at least the possibility of serious bodily injury being occasioned to the police officer who had pursued their vehicle, and who had brought his own vehicle to a stop in close proximity to them.

In this regard, I find his objective criminality in relation to the shooting to have been greater than that of Lagi, whose complicity in the offence, of which he was convicted, must be assessed, consistently with the jury verdict ( Regina v Isaacs (1997) 41 NSWLR 374), as arising from his participation in a joint enterprise with the other occupants of the vehicle for the use, by one or other of them, of a handgun so as to avoid arrest; although without any intention or expectation, on his part , of it being discharged at the officer who had pursued them, and without any contemplation, on his part, of the possibility of it being used in a way that might result in the death of, or grievous bodily harm, to that officer.

The difference between these two offenders, in terms of objective culpability, turns upon their respective mental states, that is, their understanding or contemplation of what was to occur. The difference in the findings of the jury, which I must reflect in sentencing them, almost certainly arose from: (a) the absence of any direct evidence as to any conversation between the occupants of the green Commodore prior to the shooting; and from (b) the fact that the consistency of Taufahema’s conduct in retaining his weapon, and in using it to threaten initially Constables Day and Kolosque, and later Ms Kassis, supported the inference that he had earlier, that is, at the time of the shooting, possessed the additional mental element, which was not shown to exist through the subsequent conduct of Lagi, and which was required to establish the serious offence of joint enterprise murder.

The subsequent offences which Taufahema committed were also particularly serious, so far as he first menaced two police officers with a loaded weapon, although fortunately and, in his favour, without discharging it, in an attempt to make good his escape from the scene and to avoid his inevitable arrest and revocation of parole; and in then attempting, in company, to hijack a motor vehicle of an innocent and vulnerable young motorist at gunpoint.

The Crown submitted that in relation to the offences for which he stands to be sentenced, there were present the following aggravating factors mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act : (a) The victims (that is Senior Constables McEnallay and Day and Constable Kolosque) were police officers, and the offences arose because of their occupation; (c) The use of a weapon was involved; (d) The offender had a record of previous convictions, (i) The offences were committed without regard for public safety, in the circumstances previously outlined in relation to Penisini, and (j) The offender was on parole.

Similarly to the case of Penisini, it was submitted that there was a further aggravating factor in so far as the shooting was carried out in order to hide the commission of the firearm offences.

Again, it may be accepted that these factors were present, although they should not lead to any increase in sentence where they are already elements of the offence charged, as is the case for example with factors (a) and (c) in relation to the offence involving Constables Day and Kolosque. Further, the overlap between them needs to be recognised.

As in the case of the co offenders, I would regard his criminality to be mitigated to the extent that it was not part of a planned or organised criminal activity: s 21A(3)(b) of the Crimes (Sentencing Procedure) Act.

I also take the view that he is entitled to claim some mitigation for the admissions made during the trial, and for the way in which his defence was conducted. This eliminated the need for the Crown to call a number of witnesses, and assisted in shortening the hearing, thereby lessening the inconvenience, trauma and costs that would otherwise have been incurred.

Similar sentencing considerations to those outlined in relation to Penisini obviously apply so far as three of the offences were directed at police officers attempting to execute their duty. The consistent attitude of the courts concerning the need to impose sentences that recognise the very serious criminality involved in offences of that kind, and that send a strong message of personal and general deterrence, applies.

Similarly, the fact of the offender reoffending in such a serious and determined way, while on parole, must, consistently with the decisions previously mentioned, be reflected as a circumstance of considerable aggravation when framing suitable sentences. His antecedent criminal history is similarly relevant, in the way which I have previously explained, in assessing whether he presents as a danger to the community, and in gauging his rehabilitation prospects.

In this regard it is to be noted that he was born on 24 September 1978, was aged 23 years at the time of the offence, and is now aged 25 years. He had a record which saw him dealt with in the Children’s Court during 1995 and 1996, for some minor offences which led to fines or community service. He was next fined for driving without a licence.

On 29 June 1999, he was sentenced in the Burwood Local Court to a fixed term of imprisonment for six months, commencing on 29 June 1999, and expiring on 28 December 1999, for an offence of robbery.

On 15 December 1999, he was sentenced to a fixed term of 14 days, similarly to conclude on 28 December 1999, for an offence of possess a prohibited drug.

Then, on 16 December 1999 he was sentenced in the Sydney District Court, to fixed terms each of 12 months for two counts of assault, commencing on 29 March 1999, and concluding on 28 March 2000; and for an offence of assault occasioning actual bodily harm, to a term of imprisonment for three years and four months, to be served concurrently with and partially cumulatively upon, the fixed terms, with a minimum term of two years and six months, to commence from 29 March 1999 and to conclude on 28 September 2001. The head sentence so fixed was due to terminate on 29 July 2002, and it was, in relation to this sentence, that the offender was on parole, at the time of these offences.

The circumstances in which the more serious of these offences was committed were recorded in the reasons for sentence delivered by his Honour Judge Bellear as involving a sustained attack by the accused, and two other men, extending over several hours, in the course of which Taufahema punched and kicked the victim, who he had accused of stealing his clothes, and slashed his ear with a knife. The co-offenders added to the brutality of the occasion by also punching and kicking the victim, by burning him with cigarettes, and by breaking an umbrella over his arm.

The sentencing judge correctly described the incident as a shameless attack, involving heartless, callous, and sheer thuggery, on the part of all involved, directed at a young defenceless man.

So far as Taufahema is concerned, it was aggravated by the circumstance that he was subject to an eighteen-month probation order; although in his favour, were the circumstances that he surrendered himself to police, and that he entered a plea of guilty to the three charges which were brought against him.

He was next sentenced on 15 February 2000 in the Burwood Local Court to a further fixed term of imprisonment of six months for an offence of receiving stolen property.

The various sentences imposed on 29 June 1999, 15 December 1999 and 15 February 2000 were effectively served concurrently with the District Court sentences which were imposed on 16 December 1999.

Some limited material has been tendered in relation to the subjective circumstances of this offender, in the form of a report from Dr W. J. Taylor, clinical forensic psychologist.

It shows that Taufahema is the second youngest in a family of eleven children, which migrated to Australia from Tonga, when he was aged 10 years. The family were described as close and stable, without any particular problems, although Taufahema experienced some difficulty with his schooling due to language difficulties.

He left school at the age of 14 years, at the start of Year 9, and thereafter worked for a time as a bricklayer’s labourer. He has had no other employment or vocational skills, and has only a minimal history of substance abuse.

He was not reported as having any form of physical, emotional or psychiatric illnesses, save for some signs of anxiety reactive to his custody. His personality adjustment was found on testing to have some antisocial characteristics in the form of alienation with regard to authority and a degree of identification with anti social attitudes. He was thought to be lacking in insight concerning a good deal of his functioning, to have a perception of himself as being somewhat socially inept, immature and inferior, and to be somewhat insensitive to the needs of others.

He reported to Dr Taylor feelings of sadness for the police officer and his family, although he said that he could not say that he was sorry for the killing, because he had not done it. He indicated that on his release from prison he intended to return to Tonga to start a new life.

Among the conclusions of Dr Taylor contained in his opinion are the following extracts of relevance: “His criminal record indicates that he has been experiencing some difficulties in dealing with feelings of anger… His personality profile indicates that he does have difficulties in dealing with feelings of anger and hostility. He would be likely to benefit from undertaking courses in anger management in relation to this. He does, however, not possess very much insight and is not inclined towards being introspective. As a consequence, he would not be likely to have much appreciation of some of the difficulties that he has with regard to his personality adjustment. … Actuarial analysis, and other measures, indicate that he has a moderately high predisposition for recidivism. … From the information available, it is difficult to explain Mr Taufahema’s behaviour…However, he does not present with a history of having been exposed to any aggression in his own family… The typical factors which are commonly found among people who have criminal records similar to Mr Taufahema do not appear to be present. There appears to be no explanation as to why he began to develop feelings of anger and hostility and started to act out these feelings from about the age of 14 years. From the history obtained, it appears that he could have been diagnosed with having a conduct disorder during his teenage years and this certainly is often a pre-cursor to adult antisocial behaviour. It could be that he began to experience difficulties upon coming to Australia as he did not speak any English and found it difficult to cope at school. He may then have identified with a peer group which engaged in antisocial behaviour. If Mr Taufahema is to be able to lead a productive and crime-free life in the future, it would be necessary for him to firstly gain greater insight into his aggressive behaviour and to learn anger management skills in relation to this. He would also need to be able to develop some social and employment skills. Vocational training is therefore viewed as being important for him.”

This material, and the antecedent criminal history, do reveal that unless Taufahema drastically alters his approach to life, he will present as a real risk of becoming a recidivist. His prospects of rehabilitation are, at best, fair, and will depend substantially upon him making some efforts at gaining an education and undertaking whatever vocational training opportunities can be made available while in custody. He would benefit from counselling in order to gain insight into his behaviour and to control his anger. His remorse is qualified, a fact which may well reflect his lack of empathy for others or his lack of insight.

The evidence placed before me from Superintendent Stanford shows that Taufahema was moved in or about May 2003, with an A1 classification, from the MRRC at Silverwater to the former Segregation Unit 1F at Parklea, again solely by reason of the nature of the offence. The evidence of Superintendent Stanford showed that this unit has a “more sterile and unfriendly” regime than the HRMU. For example, the very limited time which he is allowed out of his cell is confined to a small yard behind the cell, without any opportunity for communication with any other inmate, other than by speaking through a wall between the individual yards, that is, if it so happened that each inmate was permitted to enter his yard at the same time. Furthermore, there are no recreational facilities or common areas, or any programmes available at this unit, which is intended for short periods of incarceration.

His future position, Superintendent Stanford said, will depend upon the decision of the Classification Committee once he is sentenced, and that will in turn depend upon the sentence imposed, and the findings as to his role in the murder.

He additionally explained that Taufahema’s access to occupational training would depend upon which prison he is classified to, and upon the education or industry there available. Again, as I understand the evidence, his position in this regard, both as to programmes and classification once he has progressed past A1, would be no different from that faced by any other prisoner.

Although it appears likely that he will be moved from Silverwater, in the near or immediate future, since it was not he who fired the fatal shot, the fact that he has been held in arduous custody to date, does, in my view, qualify as a special circumstance. So does the fact of accumulation, although neither consideration requires any significant adjustment in the non-parole period. None of the other subjective considerations such as his age or background justify any further reduction, and the period of potential release upon parole is well sufficient to cater for his return to society under supervision.

In relation to the three offences for which he pleaded guilty, I propose to allow a discount of 15% for the utilitarian value of the pleas, and for the fact that such pleas and the manner in which the defence was conducted effectively permitted a shortening of the trial. The pleas were not early pleas and any greater discount would result in sentences that would be disproportionate to the seriousness of the offences.

John Taufahema, for the offence of using a firearm without authority, I sentence you to imprisonment for 5 years to commence from 27 March 2002. The sentence imposed is the same as that passed in relation to Penisini, since I have reached the conclusion that the aggravating factor that it was you who personally held and used the weapon, together with the lesser discount, for the plea and assistance, effectively counterbalance the factor which aggravated his criminality, but which was lacking in your case, namely that some of his earlier offences had involved the use of weapons.

For the s 154C offence of attempted carjacking, I sentence you to a concurrent fixed term of imprisonment for six years, similarly to date from 27 March 2002. I am satisfied that the same sentence as that for Penisini should be imposed, by reason of the counterbalancing considerations previously mentioned.

For the offence of using an offensive weapon, in company with intent to prevent lawful apprehension, that is, the offence in relation to Constables Day and Kolosque, I sentence you to a concurrent fixed term of imprisonment for seven years, to date from 27 March 2004.

I decline to set any non-parole period in relation to these three sentences since they will be wholly absorbed in the sentence for the remaining offence.

For the offence of murder, I sentence you to imprisonment for 21 years to commence from 27 March 2005 and to expire on 26 March 2026.

I set a non-parole period of 14 years, similarly to date from 27 March 2005 and to expire on 26 March 2019, which will be your earliest parole release eligibility date.

The total sentence is accordingly one of imprisonment for 24 years, with an effective non-parole period of 17 years.

The sentences which I have specified are those which I consider individually appropriate for the four offences, taking into account, on each occasion, the factors of aggravation and of mitigation which I have mentioned. The sentence for the offence of murder is to be served partially concurrently with, and partially cumulatively upon the other sentences, in order to reflect the totality of the criminality involved.

The sentences for the first two offences mentioned have been backdated to the date of your arrest, noting that for part of them you will also be serving the balance of parole for earlier offences. I have determined that there should be a two year accumulation of sentence in relation to the offence involving Constables Day and Kolosque, having regard to the discrete act of criminality involved, which saw you hold the weapon and threaten those officers with it. Similarly there should be an accumulation of sentence for the offence of murder which must be considered as a discrete criminal act. Meli Lagi

As I have explained, the level of culpability of Meli Lagi in relation to the events concerning Senior Constable McEnallay was considerably less than that of Sione Penisini, and markedly less than that of John Taufahema, in so far as he lacked the mental element, which would have been necessary for him to be convicted of murder.

However, he still stands convicted of a serious offence, so far as he was criminally complicit in the use of a handgun, in company, with the intention of avoiding lawful apprehension by a police officer, in the execution of his duty, and also in so far as he had in his possession a loaded firearm in breach of the Firearms Act . Consistently with the jury verdict, his mental state, in relation to the principal offence, must be considered as one in which he had in contemplation that a weapon would be used, in order to avoid lawful apprehension, but not in a way that involved it being discharged at the person of Senior Constable McEnallay, or used in a way that would cause injury or death to that officer.

As Gleeson CJ observed in Regina v Hamilton (1993) 66 A Crim R 575, a decision which also has direct relevance for John Taufahema: “In that regard I should make it clear that offences against s 33B, which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension, are regarded by the Court extremely seriously. It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. ”

Yet again, the community interest in seeing a sentence imposed that properly recognises the need for the protection of police in the execution of their duty, and that carries with it an appropriate message of personal and general deterrence, must be to the forefront of the sentencing exercise.

The Crown submitted that there were present in his case the following factors of aggravation mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act : (a) The victim was a police officer and the offence arose because of his occupation; (c) The offence involved the use of a weapon; (d) The offender had a record of previous convictions; (e) The offence was committed in company; (i) The offence was committed without regard to public safety, and (j) The offence was committed while the offender was on parole.

Again, I make it clear that while these factors were present they are not to be regarded as matters of additional aggravation so far as they were already elements of the offences, as is the case in relation to items (a), (c) and (e).

As a mitigating factor I do not find his offences to have been pre-planned or part of any organised criminal activity (s 21A(3)(b)) of the Crimes (Sentencing Procedure) Act .

Similarly to John Taufahema, he is entitled to call in aid the admissions which he made during the trial, together with the way that the case was conducted on his behalf. This eliminated the need for a number of witnesses and facilitated its shortening with the resulting lessening in costs, inconvenience and trauma to those involved.

However, similarly to the other offenders, and for the reasons earlier mentioned, the last mentioned of the aggravating factors is a circumstance of considerable moment in sentencing Lagi for the principal offence of which he was found by the jury to be guilty.

He was born on 28 June 1979 and hence was aged 22 years at the time of the offences and is now aged 24 years. His record includes numerous entries in the Children’s Court dating back to 25 March 1996, including, in that year, entries for escape from lawful custody, larceny, and unlawful entry, for which control orders and a nominal fine were imposed.

In March, June and November 1997, control orders were made variously for two offences of stealing a motor vehicle, escaping lawful custody, illegal use of a conveyance, malicious damage, robbery in company, aggravated robbery and two counts of take and drive a conveyance. Fines were also imposed, in March and November 1997 for offences of stealing and enter a motor vehicle without consent.

On 26 March 1998 he experienced his first custodial sentence as an adult, when, in the Gosford District Court he was sentenced to concurrent fixed terms of imprisonment each of 12 months for 2 counts of common assault; to further fixed terms this time each of two years for five counts of assault occasioning actual bodily harm; and to a head sentence of five years, with a minimum term of two years, for an offence of maliciously wounding a person with intent to resist apprehension. It was in relation to those matters that he was on parole at the time of the present offences.

These offences, so the reasons for sentence of his Honour Judge Kirkham disclose, involved circumstances in which Lagi and two other offenders planned, and then attempted to effect, an escape from the Kariong Juvenile Justice Centre. Two of the three offenders, who had been allowed out to a secure area to play football, staged a fight in order to distract the attention of the two youth workers who had been assigned to supervise them. In the course of the altercation which followed, the three offenders made their way toward the security fence where one of them threw a form of ladder, fashioned out of a bed sheet, across the fence. While this was occurring Lagi menaced one of the workers with a crude stabbing implement which took the form of a pen with a wooden handle fitted to it.

The offenders were subdued after a violent struggle in the course of which one worker suffered a cut to his mouth. They were taken into separate cabins, but the fight was by no means out of Lagi as he again punched and spat at one of the workers. As a result of these activities, which his Honour appropriately noted as serious, each of the four youth workers who became involved suffered some form of injury.

In Lagi’s favour were taken into account his early pleas, what was accepted to be genuine contrition, his co operation with the police who investigated his case, his youth, his disturbed background, his intelligence and the fact that he had re-commenced studies while in custody, and the assessment that he had good prospects for rehabilitation. Special circumstances were found resulting in the reduction of the non-parole period from the statutory ratio of 3 years and 9 months to one of 2 years, equivalent to 40% of the overall term.

This was a particularly favourable result for an offender whose record was described by his Honour as “alarming” for “one so young”. However in his remarks for sentence, his Honour appropriately observed, in a passage which Lagi should have carefully kept in mind: “If the prisoner continues this sort of conduct when he leaves prison finally, having served his sentence on this matter, and reverts to that type of conduct, then he will become totally institutionalised it being obvious that it is not possible to release him into the public domain. The primary function of a judicial officer in sentencing is the protection of the public. It would be very difficult for judges on future occasions to resist the temptation to sentence this offender to a long period of imprisonment if convicted of similar crimes and in one so young this would be a further tragedy.”

The sentences now to be imposed obviously cannot adjust for any leniency in relation to this earlier sentence, or in any way involve additional punishment for it. However, the fact of his earlier convictions, and the fact that Lagi chose to ignore this very specific warning which was given to him, are of considerable relevance in relation to my assessment of the risks of recidivism and of his prospects for rehabilitation.

Finally, on 1 November 2002, as previously mentioned, while awaiting trial for the present offences he was sentenced, this time in the Sydney District Court, to imprisonment for four years, commencing on 21 May 2002, with a non parole period of three years, concluding on 20 May 2005 for an offence of robbery while armed with an offensive weapon. The reasons for sentence delivered by Justice Blanch in relation to this matter disclose that Lagi entered a Post Office, where he menaced the single employee on duty with a knife, and forced him into a toilet, before stealing some $265. He was accompanied by two other offenders in this enterprise, and was arrested only after his palm print was subsequently matched with a print found at the scene. In his favour he pleaded guilty to the offence.

This antecedent criminal history will be taken into account by me, in the manner noted when dealing with Penisini, so far as an assessment is to be made as to his prospects of recidivism and/or rehabilitation.

The only other material which has been placed before me by way of Lagi’s subjective circumstances comes from a background report which had been compiled by the Department of Juvenile Justice from various records, although without personal contact with him, for the purposes of the sentencing proceedings in November 2002. As I have noted, they related to an offence, which had occurred in 1996, when he was aged 17 years.

This report showed that he was the elder of two children who had been brought from Fiji to Australia, and who had eventually been adopted by his maternal grandparents. They were said to have been a deeply religious family, and to have adopted a punitive attitude towards discipline.

As a result of the work commitments of his natural parents, it was reported that they had experienced difficulties in maintaining suitable levels of supervision of their children. Lagi was also recorded as having experienced distress at having been separated from his mother. There was apparently no bonding in the family relationship, and it was suggested that Lagi had become even more isolated when, as a result of his offending behaviour, he had been placed into juvenile custody, commencing in 1993.

The report, however, noted that, despite the fact that the family relationship had been fraught by a childhood history of rejection by his parents, by cultural identity problems, by lack of self identity and self esteem, and by offending behaviour, the adoptive parents were continuing to support him.

He had attended the Kingsgrove High School until his suspension in April 1994 for the abuse of a staff member. Otherwise his education had been confined to whatever has been made available at Juvenile Justice Centres, although it seems that he had been assessed as capable of doing well academically.

It was noted that, following his earlier release on parole, he had secured and maintained employment, that he had been regarded as responding well to parole supervision and that he had been back residing with his adoptive parents, at least until the time of his arrest for the current offences.

The report noted that he had been assessed as having a strong tendency to associate with other offenders and with persons older than himself, a circumstance which had been noted as a concern during his time under supervision.

As a result of his offending, he was recorded as having had extensive contact with Juvenile Justice from 1993 and with the Probation and Parole Services since 1997. The various community based orders which had been imposed had all been breached as a result of his subsequent offences, and he had been first transferred to an adult correctional facility in 1997, following an attempted escape from a Juvenile Justice Centre, and an assault of a worker at such Centre.

The author of the report noted the escalating pattern of his offending, as well as the fact that there had been some co operation, although incomplete co operation, on his part, in attempting anger and stress management through the programmes which had been offered to him while at Kariong, and subsequently.

Notwithstanding his record, it was suggested that he was “able to apply himself to take some positive initiatives when given the opportunity in an environment which provided strict boundaries”. While having shown some insight into his behaviours it was also thought that this had been undermined by his impulsivity and the negative influences to which he had been exposed.

The report is of some immediate relevance so far as it shows that since being back in custody, he has made attempts to attend the Violence Prevention Unit, and has participated in programs aimed at increasing his self esteem.

He was not shown to have been suffering from any form of illness, and although he was thought to have had some issues with substance abuse, the nature and extent thereof was not determined.

While the report has its deficiencies in so far as it does not depend on personal interview, or draw upon any psychiatric or psychological assessment, and in so far as it has not been brought up to date, it does present something of a picture of this offender. It would appear that, arising out of the earlier disruption in his upbringing, which was not of his making, he drifted into bad company and escalating criminality, which would seem to have been partially drug related, but more directly driven by his impulsivity and attraction to a peer group which operates outside the law.

His response to control orders, probation, prison, parole and supervision by both the Department of Juvenile Justice and the NSW Parole Service has been patchy at best, although he seems capable if it suits him, of having some insight into his behaviour, and of undertaking lawful employment. His history has in fact been one of escalating violence, culminating in the present offences which saw him travelling with three other offenders, each of whom was armed, and then being criminally complicit in a joint understanding that one of them would use a weapon to avoid their lawful apprehension and inevitable return to prison once their parole was revoked.

The conclusion I reach is that he is not unintelligent, and that, if properly motivated, he could have some prospects of rehabilitation. This will depend entirely on whether he can come to deal with his impulsivity and can learn to resist being attracted to the activities of his delinquent peers. If he cannot be persuaded to that option, then he will continue to present a serious risk of escalating criminality and recidivism which will result in him seeing out a significant portion of the remainder of his life in custody, as Judge Kirkham warned him in 1996.

It will be in his interests, as well as that of the community, for him to be exposed to appropriate programmes and subjected to close supervision for an extended period post release, in an attempt to avoid such a bleak outcome.

As in the case of John Taufahema, I propose to allow a discount of 15% in relation to the utilitarian value of his plea concerning the firearm offencef and in relation to the assistance which was provided by the manner in which the defence case was conducted, in eliminating from the trial any unnecessary issues and in minimising the costs, inconvenience and trauma that may have otherwise been occasioned. The plea was not an early plea and no greater discount is warranted. Nothing has emerged in his case as to the existence of any remorse or contrition beyond that signified by the plea to the firearm offence.

The evidence of Superintendent Sandford is also applicable to Lagi, since he has similarly been held in the HRMU, since 26 June 2002, having previously been confined in maximum security. He has reached stage 2.1 in the programme, presumably because he has been serving another sentence, and could have expected to finish the HRMU programme in a further five to six months. However, as the Superintendent pointed out, the continuation of his detention at that Centre may alter, now that he has been acquitted of the principal charge.

His next classification would be as an A2 prisoner, in which event he would be detained at a maximum security centre; after this his progression would be to a B classification, a move normally occurring at a point somewhere between one-half and two-thirds of his non-parole period, depending upon his behaviour. The offence for which he was previously serving a sentence would have seen him classified A2, while that of which he has now been convicted, as distinct from the principal offence charged, would most probably have not altered that status.

The circumstance of his confinement to date at the HRMU and the fact of an accumulation which I propose, of almost 3 years upon the existing sentence, qualify as special circumstances justifying some limited variation in the ratio of the non-parole period to the term of the sentence.

Otherwise I am not persuaded in the light of the antecedent history of defiance to the law, that any of the subjective circumstances of the offender qualify as such. The potential period of release upon parole is sufficient to foster such potential for rehabilitation as he may demonstrate during his period in custody.

Meli Lagi, for the offence of possessing a firearm without authority, I sentence you to a fixed term of imprisonment for four years, to date from 3 April 2005. The sentence in your case is somewhat less than that applicable to your co-offenders since you did not use your weapon, in any fashion.

I decline to fix a non-parole period for this offence since the sentence will be wholly absorbed in the non-parole period for the sentence next imposed.

For the offence of using an offensive weapon, in company, with the intention of preventing lawful arrest, I sentence you to a concurrent term of imprisonment for ten years, to date from 3 April 2005, and to expire on 2 April 2015.

I set a non-parole period of six years also to date from 3 April 2005 and to expire on 2 April 2011.

The total effective sentence imposed for the present offences is accordingly one of 10 years, with a non-parole period of 6 years, to take effect cumulatively upon the non-parole period for the existing sentence, as adjusted to allow for the period between your arrest and the commencement of that sentence, with the result that you will now be serving sentences providing for a combined total of imprisonment for 13 years, with an effective minimum period in custody of 9 years, from the time of your most recent arrest.

I make it clear that, but for the sentence imposed on 1 November 2002, I would have backdated your sentences to the time of your arrest.

The fresh sentences are each directed to commence from 3 April 2005 by reason of the fact that you are currently serving a sentence for a serious offence which predated the present offences, and which commenced on 21 May 2002, and for which the non-parole period is due to expire on 20 May 2005. Unless there is an effective accumulation upon the non parole portion of that sentence, adjusted in the way later explained, the sentences for the current offences would not properly punish you in relation to them, nor would the sentencing order give proper regard to the total criminality which is now evidenced by all three offences.

Consistently with the approach taken in relation to your co-offenders, and in the light of the fact that the aggravating factor relevant to you having reoffended while on conditional liberty, has already been taken into account when fixing the fresh sentences, it is appropriate that they be backdated to reflect the period between 3 April 2002 and 20 May 2002 when you were both serving the balance of parole for the earlier offence and held on remand for the fresh offences. This has the effect of adjusting what would otherwise have been a starting date after accumulation of 20 May 2005, to that of 3 April 2005 mentioned.

I have directed that the two fresh sentences be served concurrently with each other, since they are wholly related, and since in your case, you did not use a weapon offensively.

Before parting from these remarks on sentence, I consider it appropriate to note the extreme dedication to duty and bravery displayed, initially by Senior Constable McEnallay in attempting to deal with the potentially dangerous situation which had developed, and subsequently by Constables Day and Kolosque who maintained their pursuit on foot of the offenders, although menaced with a gun, and then engaged in a physical struggle at close quarters with them, in circumstances in which they continued to be at risk of suffering serious injury.

The highly commendable professionalism of these officers, and indeed of the other police who became involved in the incident, and who managed to arrest three of the occupants of the green Commodore, within a very brief time after the shooting, should not go unnoticed. I will direct that a copy of these remarks be forwarded to the Commissioner of Police.