R v Taki[2015] QCA 60

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant, William Rotoparera Taki, was charged with burglary with the aggravating factors of violence while armed in company (count 1); stealing (count 2); and grievous bodily harm (count 3).  All offences were charged as occurring on the 4th of October 2013.  On the 28th of August 2013, he pleaded guilty to burglary with violence, but not guilty to the remaining aggravating factors, not guilty to stealing, and guilty to grievous bodily harm.  After a two-day trial, he was convicted of the aggravating factors of the burglary and of stealing.  On 1 September 2014, he was sentenced to six years imprisonment on the aggravated burglary, two years imprisonment on the stealing and five years imprisonment on the grievous bodily harm.  The judge set a parole eligibility date after three years.
2. He has applied for leave to appeal against sentence, contending that the effective six year term of imprisonment with parole eligibility at the statutory halfway point is manifestly excessive.
3. The applicant was 28 years old at the time of the offences and 29 at sentence.  He had a minor criminal history.  In 2007, he was convicted and fined in the Magistrates Court for assault occasioning bodily harm:  punching a man to the face.  In 2010, he was dealt with for a minor street offence and later convicted and fined for wilful damage: smashing a car window.  In 2014, he was dealt with for breaches of bail.
4. The offences occurred, the sentencing judge found, after the applicant heard that the 32 year old male complainant and his 29 year old wife, who were both unknown to the applicant, had money in their home.  He decided to break in and take the money.  The complainants had withdrawn $10,000 from their bank account, but had given that money to a builder that day.  They had no money with them. Instead, the judge found, the applicant stole jewellery valued at more than $25,000.  Armed with some sort of gun, he forced his way into the house in company with an unknown person.  The applicant assaulted the male complainant with the gun, knocking him unconscious and then continued to assault him.  The male complainant suffered three fractures to his jaw requiring reconstructive surgery, including the insertion of plates.  The applicant’s DNA was found on a drink can left at the top of the stairs.
5. When interviewed by police, he admitted going to the house to assault the male complainant but he was unarmed.  He claimed that he was angry with the male complainant for supplying drugs to his young cousin.  He told police that a second person arrived later, coincidentally and unknown to the applicant, to collect something.  He told police at the end of the interview that he did not intend to hurt the male complainant to the extent of him getting plates put in his jaw, but he was not sorry for his actions.
6. The prosecutor, at sentence, tendered victim impact statements from the complainants.  The male complainant was hospitalised for about two weeks.  At the time of his statement, his jaw was still sore when bumped.  Unsurprisingly, he has had an adverse psychological and emotional reaction to the offending.  The female complainant was pregnant at the time of the offences and was fearful for her unborn child.  She remains worried about the detrimental effect of the offences on her husband, who has found it difficult to obtain a job and has lost confidence in many ways.
7. The prosecutor referred the judge to cases including: R v Rankin^[1], where the applicant pleaded guilty; R v Duncan^[2], where the applicant pleaded not guilty to some counts and guilt to others; R v Peisley^[3], where the applicant pleaded guilty; and R v Pearce^[4], where the applicant was convicted after a trial.
8. Defence counsel, at sentence, stated the applicant was born in New Zealand and came to Australia in 2005 with his then-partner and three children.  They separated, and he has been in his current relationship for five years.  He and his current partner have two daughters aged two and one.  He has had a solid work history.  His partner is a dentist and, for the past eight months, he was a stay-at-home father.  His criminal history, defence counsel submitted, was relatively minor.  Counsel emphasised the applicant had pleaded guilty to burglary with violence and grievous bodily harm consistent with his admissions to police.  He told police that he was alone, unarmed and did not steal anything.
9. The cases relied on by the prosecution, defence counsel contended, were all distinguishable.  A serious violent offence declaration was not appropriate.  In light of the applicant’s guilty pleas, a sentence of five years imprisonment with parole eligibility after two years should be imposed.
10. In the judge’s sentencing reasons, her Honour stated that, although the applicant partially admitted his guilt to police, the jury rejected his version of events.  This showed only limited remorse.  The judge referred to the applicant’s comparative youth and limited criminal history, but noted that the use of a firearm made this a serious example of a home invasion offence which caused serious injury to the male complainant, who had been significantly affected by the offence.  The judge made no reference to the applicant’s guilty pleas.
11. The applicant, who was self-represented in this application, submitted that a lighter sentence was warranted given his lack of previous significant criminal history.  He stated that he was remorseful and he emphasised that he wanted to go home to his kids.
12. The cases to which the respondent has referred this Court do not suggest that the head sentence of six years imprisonment was in any way manifestly excessive given the serious aspects of this offending to which the sentencing judge referred.  Personal and general deterrence required a stern sentence.  The respondent, in its outline, however, pointed out that the primary judge, in her sentencing reasons, did not comply with s 13(3) Penalties and Sentences Act 1992 (Qld) by stating in open Court that her Honour took the guilty pleas into account.  As this Court stated in R v Safi^[5] at [16]:

“…the obligation imposed by s 13(3) is important.  Where leniency is afforded on account of a plea of guilty, a statement to that effect serves the particularly important purpose of informing offenders of that fact.  The publicity given to such statements encourages guilty offenders to plead guilty, thereby saving victims and witnesses of offences the trauma, disruption, and expense which may be involved in giving evidence and it saves the State the expense of prosecuting offences.”

13. This Court further noted that non-compliance with s 13(3) does not inevitably result in the sentence being reviewed.
14. There can be no doubt, in light of the record in this case and the submissions made by defence counsel, that this highly experienced sentencing judge was aware that the applicant pleaded guilty to much of the offending for which she was sentencing him, but none of the criteria relied on by this Court in Safi at [16] to conclude in that case that the judge there had taken the guilty pleas into account even though not mentioning it, were present in this case.
15. Commonly, an offender is given credit for an early guilty plea by a parole eligibility recommendation or a setting of either a parole release date or a suspension date at about one-third of the head sentence.  In this case, as her Honour correctly apprehended, such leniency was not warranted as the guilty pleas were very limited and the limited basis on which it was entered was not accepted by the jury.
16. The respondent contended that the judge had taken the guilty pleas into account by not declaring any of the offences to be serious violent offences.  I cannot accept that contention in the absence of a clear statement from the judge in the sentencing reasons.  I consider the judge’s omission to refer to the guilty pleas and to give absolutely no or apparent credit for the limited cooperation with the authorities and the limited remorse shown by those guilty pleas, suggests that the judge did not take them into account as a mitigating factor at all.
17. In Safi, for example, the head sentence of 10 years did not allow for the setting of a parole eligibility date at all.  In this case, the absence of a parole eligibility date slightly earlier than the statutory halfway point suggests to me that the judge did err in not giving credit for the guilty pleas and in not complying with s 13(3).  For those reasons, I consider that error requires this Court to resentence the applicant.
18. The applicant pleaded guilty to the bulk of the most serious offending with which the sentencing was concerned, namely, the offence of burglary with violence and the offence of grievous bodily harm.  Some, albeit limited credit, should be given to his limited cooperation with the authorities and acceptance of responsibility and remorse; see Cameron v The Queen^[6].
19. In the circumstances pertaining in this case, I consider that the offence was objectively extremely serious.  The male complainant was seriously injured and both complainants have understandably been extremely adversely affected.  A head sentence of six years imprisonment was plainly within range, but the applicant should be given some modest credit for his relatively trouble-free past and his limited cooperation and qualified guilty pleas.  I would order that he be eligible for parole after two years and nine months, that is taking his three days of pre-sentence custody into account, on 28 May 2017.
20. MORRISON JA:  I agree and add only this.  Applying Safi, I am unable to detect in the reasons given by the learned primary judge how the plea of guilty was taken into account.  Whilst her Honour mentions it, it is not apparent to me how that was done, if it was done at all.  Secondly, the approach taken by the learned primary judge was that there was some co-operation with the police by way of an interview and that that was an indication of quite minor remorse, and the partial guilty plea indicated limited remorse.  That is substantiated by the interview conducted with the applicant where, on one view, no remorse at all was indicated.  That lack of remorse is reflected, in my view, by the approach to today’s application.  That said, I agree with the reasons just given by the President.
21. APPLEGARTH J:  I also agree with the reasons given by the President and add the following.  The applicant contended in the application that the sentence was manifestly excessive.  His written submissions did not develop that point other than by reference to matters raised in an abandoned appeal against conviction.  Nothing in those statements indicated any remorse.  In his oral submissions today, the applicant essentially submitted that the sentence imposed was too long for someone with his limited criminal history.  I do not accept that submission.  If the applicant had a more extensive criminal history, then an appropriate sentence would have been one of a head sentence of seven years or more, in my view, or at least a sentence of five years’ imprisonment with a serious violent offender declaration.
22. The issue helpfully raised by counsel for the respondent, though, is that there was a non-compliance with s 13(3) of the Penalties and Sentences Act.
23. During the sentencing hearing, defence counsel submitted that it stood in the applicant’s stead that, despite having a trial on all of the issues, he pleaded guilty, and had always been going to plead guilty, to the serious incident of the burglary and using violence and also the grievous bodily harm.  Her Honour remarked that that was on a completely different basis.  Counsel confirmed that it was on the basis of his instructions that the applicant did not have a weapon, was unaccompanied and that he did not intend to steal anything.  I turn to what was said in Safi [2015] QCA 13 at [16].  The President has helpfully referred to the relevant principles.  The Court there said:

“Where it is evident that the guilty plea was in fact taken into account, however, those considerations will not necessarily justify the Court in reviewing a sentence merely because the sentencing judge did not clearly state that the plea was taken into account.”

24. In that case, the conclusion was reached that the sentencing judge did take account of guilty pleas in formulating the sentence, having observed that the applicant pleaded guilty, the circumstances of the comparable sentences were referred to involved pleas of guilty, the circumstance that the sentence imposed by the sentencing judge was within the range of sentences suggested by those decisions, and the inherent unlikelihood that the basic principle was overlooked.  Something similar could be said in this case, and, in the light of the exchange between her Honour and defence counsel, it would seem remarkable to me that the experienced and learned sentencing judge did not take into account the pleas of guilty and the basis upon which they were made.
25. However, I share Justice Morrison’s reservation that one cannot say how they were taken into account.  What one can say is that, in the circumstances before her Honour, only limited weight could be placed upon the guilty pleas by way of mitigation.  They were somewhat compelled by the circumstances, including DNA found in the complainant’s house and the admissions that he made to police.  As has been said, there was no real indication of remorse.  So far as the guilty pleas indicated a willingness to facilitate the course of justice, they did represent some savings.  There was no need for medical evidence and DNA evidence did not need to be called.  Nonetheless, the trial proceeded and the complainants were cross-examined and it was put to them that they had some involvement in drugs.  They had to relive in a very public way the shocking home invasion and use of a weapon: namely a gun, which smashed the jaw of one of the complainants.  So there was no relief for the complainants by the guilty pleas.
26. Having regard to the comparable cases that were advanced before the sentencing judge and that have been referred to in the outline here, I am unable to conclude that a sentence of six years as a head sentence with eligibility after one-half was manifestly excessive.  One has to also consider that the head sentence had to include a serious offence of stealing $25,000 of personal items of jewellery.  However, for the reasons given by the President, there was non-compliance with s 13(3).  Although I am satisfied that account was taken of the guilty plea, I am unable to say how it was taken into account, for example, by reducing what would otherwise have been a sentence of seven years or higher to six years, or whether it was taken into account by not being minded to make a serious violent offender declaration.  I note in passing that in many of the comparable cases there were such declarations.  In this case, it was open to the sentencing judge, and, indeed, it is open to this Court in re-sentencing to consider a serious violent offender declaration, because, notwithstanding the applicant’s limited criminal history, this has all the hallmarks of a serious violent offence.
27. It seems to me in all the circumstances that the Court should re-sentence.  Although it would be open to this Court to impose the kind of sentence that I said it was open to the learned sentencing judge to impose, namely, a sentence of more than six years, or to impose a sentence of, say, five years with a serious violent offender declaration, I think in all the circumstances the most appropriate sentence is the one pronounced by the President: a sentence of six years with parole eligibility after two years and nine months.  This gives appropriate weight to the guilty pleas; guilty pleas which were not evidently motivated by any great remorse and provided limited cooperation with the criminal justice system.
28. MARGARET McMURDO P:  The orders are the application for leave to appeal is granted, the appeal against sentence is allowed to the extent of adding that the applicant be eligible to apply for parole after two years and nine months, that is, on 28 May 2017.  The sentence imposed at first instance is otherwise confirmed.