Tukuafu v R [2024] NSWCCA 84

Tukuafu v R [2024] NSWCCA 84 · Read the judgment on AustLII

Catchwords: Sentencing – Form 1 procedure – relevance of Form 1 matters in assessing objective seriousness

Following a helpful review of the authorities (and setting aside one which seems to stand alone), the CCA has set out the bases upon which the facts of Form 1 offences can be taken into account on sentencing – and in the process, considered whether or not, and how, the Form 1 offence(s) can be used in assessing the principal offence.

The applicant pleaded guilty to an offence of break, enter, and commit serious indictable offence – a violent home invasion – and three drug supply offences. There were three further offences, which were placed onto two Form 1 documents: an assault occasioning actual bodily harm in company (associated with the home invasion), and offence of knowingly deal with proceeds of crime and participating in a criminal group (associated with the drug offending). The applicant was sentenced to 8 years with a non-parole period of 5 years. He appealed on grounds including that the sentencing judge erred by taking the Form 1 offences into account when assessing the objective seriousness of more than one principal offence.

Readers will be aware that the ‘Form 1’ refers to the procedure, found in Division 3 of the Crimes (Sentencing Procedure) Act 1999, which allows a sentencing judge to take into account further offending in sentencing for a principal offence. The offence(s) on the Form 1 do not result in a conviction, but can result in an increased sentence for the principal offence.

The applicant pointed to a longstanding line of authority to the effect that an offence on a Form 1 does not affect assessment of the objective seriousness of the principal offence to which it is attached. One recent authority, Flick v R [2023] NSWCCA 197 (‘Flick’), seemed to put a gloss on that proposition by finding that this may be permissible where the facts are ‘inextricable linked’. The applicant contended that to the extent that Flick held that a Form 1 offence can inform the objective seriousness of the principal offence, it was wrongly decided or should otherwise be distinguished.

Huggett J (with whom Ward P and Chen J agreed) set out a comprehensive and useful summary of the line of cases examining how a Form 1 may be used in the sentencing process, as well as the line of authorities establishing that although any offence(s) on the Form 1 are relevant to aspects of sentencing such as the increased need for personal deterrence and retribution, the Form 1 is not relevant (at least, absent the reasoning in Flick) to the objective seriousness of the principal offence (at [86] to [122]).

In the course of that summary, her Honour extracted the parts of Flick which held that, in effect, it will (or might) not be erroneous to take into account the Form 1 in assessing the objective seriousness of the principal offence where the facts are ‘inextricably linked’ (at [114] to [119] of this decision; [74] to [78] of Flick). Here, Huggett J did not consider that it was necessary to decide whether Flick was wrongly decided, because the facts and circumstances of the two Forms 1 and the principal offences to which they respectively attached were not ‘inextricably linked’. The principal home invasion offence and the Form 1 assault involved separate offences committed on different victims. Even less so were the knowingly deal with proceeds of crime and participate in criminal group offences ‘inextricably linked’ to the drug supply offences. (at [126]).

Leaving Flick to one side, the authorities reveal the different ways that further offending can come before a sentencing court. Where the further offending is uncharged, the statutory scheme in Division 3 of the Crimes (Sentencing Procedure) Act 1999 has no application (at [127]-[128]). However, where further offending is charged, and the statutory preconditions for the Form 1 procedure have been met (including the residual discretion of the sentencing judge not to act on the Form 1 if it is not appropriate to do so, found in s 33(2)), the authorities establish the following propositions in relation to the permissible use of evidence on a Form 1:

A further offence may increase the weight to be afforded to personal (or specific) deterrence and retribution.

A further offence may provide the context of the offending for which an offender is to be sentenced.

A further offence may demonstrate that a principal offence was not isolated or aberrant but is representative of an ongoing course of conduct.

A further offence may inform an offender’s moral culpability.

A further offence may establish that an offender is not a person of good character.

A further offence may establish an offender’s motive, state of mind and/or intention at the time the principal offence is committed.

A further offence may establish an offender’s awareness of the complainant’s vulnerability.

Taking the further offence on a Form 1 into account in those ways is permissible and may (emphasis in original) result in an increase in the sentence ultimately imposed (at [129]-[130]). In the circumstances of this case – including that some of the offences taken into account as part of the assessment of objective seriousness were not ‘inextricably linked’, in the manner described in Flick – the primary judge had erred by taking the offences on the drug supply Form 1 into account in relation each of the drug offences. Division 3 makes clear that an offence (or offences) on a Form 1 document can only be taken into account when dealing with an offender for the principal offence; that is one principal offence (at [136] – emphasis in original).

The finding of error was, however, a hollow victory: on resentence the CCA would have imposed a sentence which was slightly longer than the original sentence, so that the appeal was dismissed.

The Court having declined to decide the question of whether it was wrongly decided, Flick remains valid to the extent that it holds that Form 1 offences which are inextricably linked can be taken into account in assessing the objective seriousness of a principal offence.