The Queen v Fakatounaulupe Ngata

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 03 November 2015
• Docket Number: File Number(s): SCC 119 of 2015
• Date: 03 November 2015

[2015] ACTSC 356

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCC 119 of 2015

SCC 120 of 2015

The Queen

(Crown)

and

Fakatounaulupe Ngata

(Defendant)

Representation:

Counsel

Mr M Fernandez (Crown)

Ms S Saikal (Defendant)

Cases Cited:

Allred v The Queen (2015) 10 ACTLR 325

Auld v The Queen [2013] ACTCA 21

Barbaro v The Queen (2014) 253 CLR 58

Grimshaw v Mann [2013] ACTSC 189

Islam v The Queen [2014] ACTCA 2

Miles v The Queen [2014] ACTCA 41

Munro v The Queen [2014] ACTCA 11

Murphy v The Queen [2005] ACTCA 43

Oliver (1980) 7 A Crim 174

Pavicevic v The Queen [2010] ACTCA 25

Roberts, Lewis and McVean (1994) 73 A Crim R 306

R v Campbell [2010] ACTCA 20

R v Cartwright (1989) 17 NSWLR 243

R v Flowers [2014] ACTCA 13

R v Harris (2007) 171 A Crim R 267

R v Hodge [2015] ACTSC 214

R v Robertson (2010) 174 ACTR 32

R v Sukkar [2006] NSWCCA 92

Slater v The Queen [2014] ACTCA 33

Taylor v The Queen [2014] ACTCA 9

T v R [2007] NSWCCA 62

Wong v The Queen (2001) 207 CLR 584

York v The Queen (2005) 225 CLR 466

Zocchi v The Queen [2013] ACTCA 12

Legislation Cited:

Crimes Act 1900 (ACT), ss 35A, 375

Crimes (Sentencing) Act 2005 (ACT), ss 7, 36, 57, Pt 4.4

Legislation Act 2001 (ACT), s 190

Magistrates Court Act 1930 (ACT), s 90B

Supreme Court Act 1933 (ACT), s 68CA, Pt 8

Criminal Code 2002 (ACT), ss 310(a), 653

CRIMINAL LAW — Jurisdiction, practice and procedure — judgment and punishment — sentencing — aggravated robbery — in company — in a public place — transferred offences — back-up offences — remorse — assistance to authorities — principles applying to discount on sentence for assisting authorities

Decision:

• 1. Fakatounaulupe Ngata be convicted of aggravated robbery.

• 2. Fakatounaulupe Ngata be sentenced to three years imprisonment to commence on 25 November 2014.

• 3. The sentence be reduced by 29 months to take account of the offer of assistance to the authorities and giving evidence in the trial of the accused.

• 4. A non-parole period of 18 months be set, to begin on 25 November 2014 and to end on 24 May 2016.

• 5. The charges of affray and causing harm while participating in an illegal group be dismissed.

Refshauge J

1 On 4 October 2014, Fakatounaulupe Ngata went with two other persons, the co-accused, to Belconnen Shopping Mall where they waited for the two victims to attend a motor cycle parking bay. When the victims appeared, the three, Mr Ngata and his two co-accused, attacked the two victims, punching them severely, and then stole the t-shirts that they were wearing.

2 As a result, Mr Ngata was charged with aggravated robbery. The circumstances of aggravation was that Mr Ngata was in company at the time.

3 Aggravated robbery is an offence against s 310(a) of the Criminal Code 2002 (ACT), attracting a maximum penalty of 2500 penalty units (at the time, a fine of $375,000) and 25 years imprisonment.

4 As the maximum penalty shows, the offence is to be regarded as a very serious one by the court. See Oliver (1980) 7 A Crim 174 at 176.

5 Mr Ngata also asked me to take into account one other offence of aggravated robbery. I inquired of him personally, as required under s 57 of the Crimes (Sentencing) Act 2005 (ACT), if he wished me to do so and confirmed that no proper inducement had been made to him for that purpose. I will take it into account.

6 When he was committed to this Court, two further offences were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). Those were offences of affray and of causing harm when participating in a criminal group.

7 Affray is an offence under s 35A of the Crimes Act 1900 (ACT), which provides for a maximum penalty of two years imprisonment. It is thus a summary offence. See s 190 of the Legislation Act 2001 (ACT).

8 Causing harm when participating in a criminal group is an offence prohibited by s 653 of the Criminal Code and renders Mr Ngata liable to a maximum penalty of 10 years imprisonment.

9 A back-up charge is defined in s 68CA of the Supreme Court Act as follows:

back-up offence , in relation to an indictable offence (the first indictable offence), means an offence—-

• (a) that is—-

  • (i) a summary offence; or

  • (ii) an indictable offence that is capable of being dealt with summarily by the Magistrates Court under the Magistrates Court Act 1930, part 3.6 (Proceedings for offences punishable summarily); and

• (b) at least some of the elements of which are similar to the elements that constitute the first indictable offence; and

• (c) that is to be prosecuted on the same facts as the first indictable offence.

10 The two transferred offences appear to be back-up offences, for at least some of the elements of each of those offences are similar to the elements of aggravated robbery. Thus, for the offence of affray, elements include violence or a threat of violence directed at the victim where such violence or threat of violence would be likely to cause a reasonable person to fear for his or her safety.

11 The offence of causing harm when participating in a criminal group includes an element of engaging in conduct which causes harm to someone else and where the offender is reckless about causing that harm. The offence is punishable summarily under s 375 of the Crimes Act with the consent of the offender.

12 Aggravated robbery includes as an element the use of force on someone else or the threat of use of force on someone else.

13 These identified elements are, in my view, similar elements within the meaning of the definition of ‘back-up offence’ referred to above (at [9]).

14 The other requirement is that the offences arise out of the same facts as the offence of aggravated robbery.

15 In each case, the violence alleged, which is the harm alleged, is the violence perpetrated on the victims on 4 October 2014 when the aggravated robbery was committed.

16 Ordinarily, the prosecution would not proceed with a back-up charge in the event that the principal charge proceeds. That is usual where the back-up charge is one that is wholly or almost wholly constituted of elements in the principal charge, such as where the principal charge is, for example, assault occasioning actual bodily harm and the back-up charge is common assault, or the principal charge is driving with a prescribed concentration of alcohol and the back-up charge is driving under the influence of alcohol. This concept, however, is not expressly included in the definition of back-up charge. The two offences here seem to me, however, to be back-up charges in this sense. It would offend the totality principle for the sentences for aggravated robbery and affray not to be concurrent. See R v Harris (2007) 171 A Crim R 267 at 275–6; [43].

17 While the offence of causing harm when participating in a criminal group has elements of criminality in addition to those that overlap and are similar and so could include some punishment that is not concurrent, it seems to me that most of the criminality is encompassed in the aggravated robbery charges. In any event, this offence would be a related offence in terms of s 68CA of the Supreme Court Act, where it arises substantially out of the same circumstances as those for which the aggravated robbery arose.

18 I was informed that the charges are regarded as back-up charges and that they should not proceed in the circumstances.

The facts

19 The background to the offence is that Mr Ngata was, at the time, the Sergeant-at-Arms within the Canberra Chapter of the Rebels Outlaw Motorcycle Gang. The function of the Sergeant-at-Arms is to maintain discipline and the security of the Chapter and its territory. He described the role in an interview he gave to police on 8 September 2015 as follows:

Well, if any other gangs come into town or there was a beef between us and the other rival gang, if there was a member that needed to be sorted out, there was a beef in-between chapters that needed to be sorted out, I was the guy to sort that out.

20 On 4 October 2014, Mr Ngata was with one of his co-accused, a member of the East Canberra Chapter of the Gang, when the other co-accused contacted them telling them that a couple of members of a rival gang, the Finks Outlaw Motorcycle Gang, were at the Belconnen Mall. Mr Ngata said that he would have to ‘go and see what these jokers are all about’. He intended, at the time, to attack them, as they were from a different gang, apparently trespassing on the territory of Mr Ngata's Gang, and nobody knew why they were in town.

21 Mr Ngata agreed with the two accused to meet at the Belconnen Westfield Shopping Centre and he and the co-accused he was with arrived just before 5 pm on that Saturday and met up with the other co-accused.

22 They went to the lower car park level and to a motorcycle parking bay where they saw three Harley Davidson motorcycles which they guessed were the bikes that belonged to the members of the gang. They waited for a while, but the bikes' owners did not appear, so they looked through the mall and then went back to the parking bays and continued to wait.

23 Shortly after 6 pm, the two victims left the mall and walked towards the motorcycle parking bay. They were wearing Finks t-shirts.

24 Mr Ngata called out to them and said ‘Did you know that this is Rebel territory?’. One of the victims ‘bridged up’ to Mr Ngata, at which point Mr Ngata hit him with his left hand so that he fell over. Mr Ngata and the three co-accused then attacked the two victims and, when one of them tried to run, one of the co-accused grabbed him on the stairs and punched him so that he fell back down the stairs and continued to punch him. They...