Authorised report: 12 ACTLR 103

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: / R v Toumo’ua
Citation: / [2017] ACTCA9
Hearing Date: / 24 February 2017
DecisionDate: / 22 March 2017
Before: / Murrell CJ, Rangiah J and Walmsley AJ
Decision: / 1. Appealallowed.
2. Sentences imposed by the primary judge set aside.
3. Respondent re-sentenced to a total of 6 years’ imprisonment (see [113]–[114]).
4. Nonparole period of 3 years’ imprisonment.
Catchwords: / APPEAL – Criminal Law – Crown appeal against sentence – nature of Crown appeal –whether specific error in allowing a discount of 25 per cent for each guilty plea – approach to discount for guilty pleas – whether sentences were manifestly inadequate – whether specific error insetting a low nonparole period – re-sentence
Legislation Cited: / Crimes (Sentencing Procedure) Act 1999 (NSW) s 22
Crimes (Sentencing Procedure) Amendment Act2010 (NSW)
Crimes (Sentencing) Act 2005 (ACT) ss 7, 10(2)–(3), 33(1), 35, 65
Crimes Act 1900 (ACT) s 114B
Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(g)
Criminal Appeal Act 1912 (NSW) s 5D
Criminal Code 2002 (ACT) ss 308, 311
Human Rights Act 2004 (ACT) ss 22(2)(i), 30
Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37)(1)(b), 37O(7)
Cases Cited: / Afiouny v The Queen [2017] NSWCCA 23
Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Barbieri v The Queen [2016] NSWCCA 295
Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638
CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308
Coggan v The Queen [2013] ACTCA 49
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; 298 FLR 397
Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Haines v The Queen [2016] NSWCCA 90
House v The King(1936) 55 CLR 499
Inge v The Queen [1999] HCA 55; 199 CLR 295
Kentwell v The Queen[2014] HCA 37; 252 CLR 601
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Markarian v The Queen[2005] HCA 25; 228 CLR 357
Millard v The Queen [2016] ACTCA 14
Milat v The Queen [2014] NSWCCA 29
Monfries v The Queen [2014] ACTCA 46
Power v The Queen (1974) 131 CLR 623
R v Allred [2015] ACTSC 327
R v Baker [2000] NSWCCA 85
R v Burton [2008] NSWCCA 128
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Chatfield [2012] ACTCA 32
R vDuffy [2014] ACTCA 53; 297 FLR 359
R v Harrington [2016] ACTCA 10; 11 ACTLR 215
R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147
R v Lachlan [2015] NSWCCA 178
R v Palu[2002] NSWCCA 381;134 A Crim R174
R v Pantano (1990) 49 A Crim R 328
R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
R v Sutton [2004] NSWCCA 225
R v Thomson[2000] NSWCCA 309; 49 NSWLR 383
Shine v The Queen [2016] NSWCCA 149
Taylor v The Queen [2014] ACTCA 9
Thomson v R [2015] ACTCA 16
Tyler v The Queen; R v Chalmers [2007] NSWCCA 247;173 A Crim R 458
Texts Cited: / NSW Sentencing Council, Reduction in Penalties at Sentence, report pursuant to s 100J(1)(c) of the Crimes (Sentencing Procedure) Act 1999(NSW) (2009)
Explanatory Memorandum, Crimes (Sentencing) Bill 2005 (ACT)
Parties: / The Crown (Appellant)
Salesi Toumo’ua (Respondent)
Representation: / Counsel
Mr J White SC (Crown)
Mr J Lawton (Respondent)
Solicitors
ACT Director of Public Prosecutions (Crown)
Kamy Saeedi Law (Respondent)
File Number: / ACTCA 25 of 2016
Decision under appeal: / Court/Tribunal:Supreme Court of the ACT
Before:Justice Penfold
Date of Decision:21 June 2016
Case Title:R v Toumo’ua; R v Schaaf
Citation:[2016] ACTSC 163

THE COURT

Introduction

1.The prosecution appealed against sentences imposed by Penfold J (the primary judge) on 21 June 2016 for four offences of burglary, one offence of theft and one offence of moneylaundering.

2.The primary judge imposed a total sentence of five years’ imprisonment and set a nonparole period of 20 months’ imprisonment, i.e. one third of the total sentence. In the case of each offence, the respondent received the benefit of a 25 per cent discount under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act).

3.For the offences of burglary, the primary judge imposed one sentence of 18 months’ imprisonment and three sentences of two years and three months’ imprisonment. Before discount, the sentences were two years’ imprisonment (for the first burglary) and three years’ imprisonment (for each of the remaining three burglaries). Burglary is an offence against s 311 of the Criminal Code 2002 (ACT) (Criminal Code) and carries a maximum penalty of 14 years’ imprisonment.

4.For the offence of theft, the primary judge imposed a sentence of three years’ imprisonment. Before discount, the sentence was four years’ imprisonment. Theft is an offence against s 308 of the Criminal Code and carries a maximum penalty of 10 years’ imprisonment.

5.For the offence of money laundering, the primary judge imposed a sentence of two years and three months’ imprisonment. Before discount, the sentence was three years’ imprisonment. Moneylaundering is an offence against s 114B of the Crimes Act 1900 (ACT) (Crimes Act) and carries a maximum penalty of 10 years’ imprisonment.

6.A reparation order for $30,000 was made.

7.The prosecution contended that the primary judge erred in:

(a)Allowing a sentencing discount of 25 per cent for each guilty plea;

(b)Imposing individual sentences and a total sentence that was manifestly inadequate; and

(c)Applying a “sentencing practice” of setting a low nonparole period because the offender did not represent a direct danger to the community.

Nature of prosecutionappeal

8.The prosecution may appeal against a sentence pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (SCA). Leave is not required. On such an appeal, the Court of Appeal is empowered to increase or decrease the sentence and substitute a different sentence: s 37O(7).

9.The SCA does not distinguish between a prosecution appeal against sentence and an offender appeal against sentence; it does not prescribe a different approach to the institution of the appeal, the establishment of error or re-sentencing.

10.However, on many occasions this Court has said that, whereas an offender appeal is concerned with the correction of error in a particular case, a Crown appeal against sentence should be a rarity, brought for the purpose of laying down principles for the general governance and guidance of courts: Thomson v R [2015] ACTCA 16 at [68] per Murrell CJ and Ross J, citing CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308; R vDuffy[2014] ACTCA 53; 297 FLR 359 at [54]–[60].

11.A number of NSW decisions deal with s 5D of the Criminal Appeal Act1912 (NSW) (Criminal Appeal Act), which provides that, on a Crown appeal, the appellate court “may in its discretion vary the sentence”. The decisions include:R v Baker [2000] NSWCCA 85 (Baker);R v Lachlan [2015] NSWCCA 178; and R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 (Hatzisavvas). In Hatzisavvas, Hoeben CJ at CL confirmed that, under s 5D Criminal Appeal Act, the Court retains a residual discretion to decline to interfere with the sentence even if it is erroneously lenient: at [70], citing Green v The Queen; Quinn v The Queen[2011] HCA 49; 244 CLR 462 at [1] (Green). In Green, the High Court considered the proper approach to a Crown appeal in NSW, where s 5D applies. At [1]–[2] and [42]–[43], the majority (French CJ, Crennan and Kiefel JJ) confirmed that, in the case of a Crown appeal where manifest inadequacy is established, the Court may nevertheless exercise its residual discretion to dismiss the appeal where injustice would flow if the appeal was allowed. Factors such as parity with an inadequately sentenced co-offender, imminent release to parole or the effect of re-sentencing on progress towards rehabilitation were identified as relevant to the exercise of the residual discretion.

12.However, as noted above, in this jurisdiction the SCA does not distinguish between re-sentencing in the case of a successful prosecution appeal and re-sentencing in the case of a successful offender appeal. In R v Chatfield [2012] ACTCA 32, this Court held that s 7(1)(a) of the Sentencing Act has an effect that is similar to s 16A(1) of the Crimes Act1914 (Cth). One consequence is that, as the High Court held in Bui v Director of Public Prosecutions[2012] HCA 1; 244 CLR 638, when the issue of re-sentencing arises following a successful prosecution appeal, the Court must disregard any “principle” of double jeopardy (presumed anxiety and distress associated with re-sentencing) and impose a sentence that constitutes adequate punishment. A related consequence is that, as explained in Kentwell v The Queen[2014] HCA 37; 252 CLR 601(Kentwell), the Court should re-sentence by exercising the sentencing discretion afresh, rather than merely confirming the original sentence on the basis that it fell within the available range: at [42] per French CJ, Hayne, Bell and Keane JJ.

Facts

13.In January 2012, the respondent began to work for the Tibbitts’ family security company in Canberra. The company was contracted by firms who provided security services to banks and other financial institutions. It serviced automatic teller machines (ATMs) in the ACT and regional NSW.

14.At the time of the offences, the respondent was second in charge to the principal, Mr Tibbitts. On 13 May 2013, pressing family concerns required Mr Tibbitts to travel interstate at short notice. He left the respondent in charge of the business.

15.That night, the respondent attended the business premises. With his head and face concealed so that he could not be identified via closed circuit television, he removed keys to bank ATMs from the safe. The respondent also took the keys for a Hyundai business vehicle that was kept at the premises.

16.The respondent drove the Hyundai vehicle to Charnwood, where he entered a St George Bank ATM bunker. Using the keys that he had taken and passwords that had been entrusted to his employer, he removed about $212,000. From there, he drove to a St George Bank bunker at Mitchell and removed about $246,000. Next, he went to Wanniassa, where he removed about $73,000 from another ATM. The total amount appropriated in the ACT was $531,330. That night, the respondent also removed $244,010 from a St George Bank ATM bunker in Queanbeyan, New South Wales. The respondent abandoned the Hyundai vehicle in the suburb of Holder.

17.On 19 May 2013, a co-offender hired a Holden vehicle at Canberra Airport and the respondent drove to Melbourne, taking the stolen cash with him. There, the respondent’s cousin leased a storage unitin her own name for 12 months, which the respondent used to store incriminating documents and cash. Between May and October 2013, he laundered much of the proceeds of the theft through betting. Most bets were placed with Tabcorp, a company that permits customers to operate telephone betting accounts.

18.It was several months before the respondent was identified as the culprit. During this period, other staff members suffered the adverse psychological effects of being under a cloud of suspicion. Mr Tibbitts and his family experienced severe psychological effects and their business was financially devastated. Clients were lost, and the business went into liquidation, with the consequence that about 15 staff lost employment, debts were incurred, Mr Tibbitts became depressed and family relationships were placed under pressure. Obligations under vehicle leases and legal fees caused direct losses of more than $30,000.

19.Ultimately, police recovered $193,782 in cash. They collected a further $152,249 from a successful bet (with a face value $52,758) that the respondent had placed on the 2013 AFL Grand Final.

Primary judge’s view of objective seriousness

20.The primary judge observed that the offences were all “serious offences”.

21.Her Honour noted that, although the burglaries related to commercial rather than domestic premises, the indirect effect of the burglaries (both psychological and financial) on the owners of the family business “was far more dramatic than the impact of most domestic burglaries”: at [26]. Her Honour referred to “a carefully planned course of offending for financial gain”; the offences were not committed on the spur of the moment:at [63]. On the other hand, most of the offences occurred over a relatively short period of a couple of hours and did not entail “the sustained and repeated acts of dishonesty involved in many cases in which employees have stolen large sums”: at [28].

22.The primary judge considered that the offences involved a “dramatic” abuse of trust, particularly because Mr Tibbitts had left the respondent in charge so that he could attend to a pressing personal problem: at [29]. The abuse of trust was twofold; there was an abuse of the trust of both the respondent’s employer and the employer’s clients, from whom the respondent stole a large sum of money, which was only partially recovered.

23.We accept the appellant’s submission that the primary judge’s characterisations of the burglaries as “around mid-range seriousness” and the theft as “slightly above mid-range seriousness” were, at least, conservative: at [46].

24.However, we consider it most unlikely that the sentences were influenced by the primary judge’s views in relation to “mid-range seriousness”. Rather, her Honour sentenced the respondent by reference to relevant specific matters bearing upon objective seriousness. Consequently, it is unnecessary to give this matter further consideration, other than to observe that references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.

25.We can identify no error in the primary judge’s approach to the assessment of the objective seriousness of the offences that is likely to have influenced the sentencing outcome and the appellant did not contend that there was such an error.

Primary judge’s consideration of subjective circumstances

26.The primary judge recorded that the offender was 30 years of age and that his prior criminal history consisted of two drink-driving offences. Her Honour noted the offender’s positive family circumstances and church connections, and referred to the evidence of referees who considered that the respondent’s actions were out of character and said that he was remorseful.

27.The respondent had submitted that his misconduct was the product of financial strain caused by a gambling addiction. The primary judge was sceptical about this claim, observing that there was no evidence of gambling other than that undertaken in an attempt to launder the proceeds of the burglaries.

28.The primary judge accepted that the respondent was at low risk of general re-offending.

29.We can identify no error in her Honour’s approach to the respondent’s subjective circumstances, and none was asserted.

Other matters to which the primary judge referred

30.The primary judge correctly identified that, for planned offences of the nature in question, general deterrence was an important sentencing purpose: [63]. Her Honour was also concerned to promote the respondent’s rehabilitation: [78]. In our view, that was entirely appropriate given the respondent’s limited criminal history and general good character, positive family and community connections and remorse.

31.The primary judge reviewed other cases to which her attention was drawn, observing that, although the offences committed by the respondent were burglaries and theft, they were, in substance, more like the deception offences that were the subject of cases to which she was referred: [68]–[71].

32.The appellant did not submit that the primary judge had failed to address a relevant sentencing consideration or had erred in her approach to the sentencing purposes that were important to the case. We can identify no error in her Honour’s approach to these matters.

Ground 1: extent of discount for pleas of guilty

33.The appellant submitted that the primary judge made a specific error in allowing a discount of 25 per cent for guilty pleas that were entered relatively late and were associated with “limited demonstrated remorse”. In addition, the appellant submitted that the primary judge failed to take into account that the pleas of guilty had been entered in the face of an “overwhelmingly strong” prosecution case, a necessary consideration under s 35(4) of the Sentencing Act.

34.At [65], the primary judge recorded the plea history. In November 2014, the respondent was charged with numerous offences and pleaded not guilty. In June 2015, he was committed to the Supreme Court for trial. In August 2015, the appellant filed an indictment containing 11 counts. Negotiations commenced. In December 2015, the respondent indicated the basis upon which he would plead guilty. In February 2016, the prosecution filed a fresh indictment containing six counts, and the respondent pleaded guilty.

35.The new indictment “rolled up” various theft counts into one theft count and abandoned what had been a separate burglary count relating to the Hyundai vehicle.

36.In submissions made to the primary judge on sentence, counsel for the respondent conceded that “the largest discount” may not be appropriate, but sought a “significant discount”.

Consideration of ground 1

37.Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender the sentencing court is required to take into account “a plea of guilty by the offender (see s 35)”.

38.Section 35 of the Sentencing Act provides:

(1)This section applies if—

(a)an offender pleads guilty to an offence; and

(b)based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.

(2)In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:

(a)the fact that the offender pleaded guilty;

(b)when the offender pleaded guilty, or indicated an intention to plead guilty;

(c)whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;

(d)the seriousness of the offence;

(e)the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.

(3)The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.

(4)However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.

(5)For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.

(6)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

39.This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999(NSW) (NSW Sentencing Act), which provides: