R v Tuifua (No 3)

[2021] ACTSC 149

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Tuifua (No 3)

Citation:

[2021] ACTSC 149

Hearing Date:

21 July 2021

DecisionDate:

21 July 2021

Before:

Burns J

Decision:

See [11]–[15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach Good Behaviour Order attached to suspended sentence – ride or drive motor vehicle without consent – consideration of offender’s prior opportunities to comply with Good Behaviour Orders

Legislation Cited:

Crimes (Sentence Administration Act) 2005 (ACT), s110

Parties:

The Queen (Crown)

Sione Feiloakitau Tuifua (Offender)

Representation:

Counsel

R Christensen (Crown)

J Robertson (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

JDR Law (Offender)

File Number:

SCC 288 of 2019

BURNS J:

1. The offender, Sione Tuifua, appears before me today, 21 July 2021, to be dealt with on a breach of Good Behaviour Orders that were imposed by myself on 17 June 2020. The particular offences upon which Mr Tuifua will need to be re-sentenced today are CC 2019/8593, a charge of riding or driving in a motor vehicle without consent, in which I imposed a sentence of 6 months' imprisonment, and CC 2020/16, a charge of theft, in which I imposed a sentence of 15 months' imprisonment.

1. The sentence was structured such that in effect, the sentence imposed was to be served partially consecutively and partially concurrently, and that a period of approximately 11 months and 12 days was to be suspended with regard to those particular offences.

1. Mr Tuifua was convicted in the ACT Magistrates Court of an offence of possession of a drug of dependence and was sentenced to six months' imprisonment. The offender was re-sentenced to three months' imprisonment, from 11 January 2021 to 10 April 2021 in that Court. The offender was also sentenced to six months' imprisonment, in relation to a charge of unauthorised possession of two firearms.

1. Those sentences were aggregated to the extent that a sentence of seven months' imprisonment was effectively imposed, commencing on 11 January 2021.

Consideration

1. When I am satisfied that an offender has breached a Good Behaviour Order attached to a suspended sentence, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provides me with only two options. I am obliged to cancel the Good Behaviour Order and I may then either re-sentence the offender or, alternatively, I may impose the sentence which was suspended.

1. The submission which has been made on behalf of Mr Tuifua, is that I should, in effect, impose the same sentence that I imposed last year but suspend the operation of that sentence with similar conditions to those which I imposed last year.

1. In that regard, I have drawn Mr Tuifua's counsel's attention to the criminal history of Mr Tuifua and, in particular, to the fact that he has been given multiple opportunities to comply with Good Behaviour Orders imposed in the courts of this Territory. They do not seem to have operated so as to reform him or deter him from committing further offences.

1. Mr Tuifua has given evidence before me today to the effect that he has reformed himself during this period of incarceration and that he has a renewed desire to stay away from drugs and criminal offending. I certainly hope, for his sake, and more particularly for the sake of his family, that what he is saying is the truth. However, Mr Tuifua’s criminal history leaves some doubt in my mind as to whether he either has that commitment or whether that commitment will survive release into the community.

1. In my opinion, the appropriate way to proceed is to cancel the Good Behaviour Orders, impose sentences that are, effectively, the same as those that were imposed in 2020 with an aggregate sentence of 11 months' imprisonment, to make those sentences partially concurrent with the sentences which the offender is currently serving and to impose a non-parole period. This is so the Sentence Administration Board can closely examine his progress in custody and determine whether it is appropriate for him to be released and, if so, on what conditions he should be released.

1. I would respectfully submit to the Sentence Administration Board that if any release is considered at the earliest opportunity which I propose to make available to him, that it be conditional upon him undertaking a period of residential drug rehabilitation.

Sentence

1. I cancel each of the Good Behaviour Orders which I imposed on 17 June 2020.

1. On charge CC 2020/16 he will be re-sentenced to eight months' imprisonment, which will commence on 11 May 2021 and expire on 10 January 2022.

1. On charge CC 2019/8593 he will be re-sentenced to six months' imprisonment, commencing on 11 October 2021 and expiring on 10 April 2022.

1. I have, therefore, re-sentenced Mr Tuifua to an aggregate of 11 months' imprisonment, commencing on 11 May 2021 and expiring on 10 April 2022.

1. Taking into account the sentence which he is currently serving, that means that there is an aggregate sentence of 15 months' imprisonment. I will set a non-parole period which expires on 10 August 2021.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: