R v Auimatagi

Agreed facts

1. Agreed facts were put before me.
2. The victims of the offence lived in a house in Warilla with their three children. On 18 June 2020 they left the home to go out. Exhibit B, the CCTV from the premises, shows that in the afternoon Mr Auimatagi, accompanied by another man, walked forcefully to the front door of the premises and knocked. The footage depicts the offender holding a baseball bat. He also had an axe in the pocket of his jeans. He waited a few seconds, stepped back from the door, removed a knife from the front of his pants, and then kicked in the front door of the premises. He and the other man entered. The footage shows Mr Auimatagi leaving the house via the laundry door and then striking various objects with the bat. This did not cause any damage. But while he was inside the premises he had damaged a television set and a dryer.
3. The genesis for the events, as set out in the facts, is that he was having an "ongoing argument" with the male victim. Material before the Court, which is not in serious dispute, including affidavits and evidence from the offender himself, is that he owed $250 to the male victim. The male victim demanded repayment of it. Mr Auimatagi told me that various threats were made to recover the debt, including a threat that "the boys from Warilla" would do something to him and that he would be "popped;" that is killed when he went to pick up his daughter from school. His wife deposes that she spoke to the unknown male who said, "Tell him the whole of Warilla is after him. I'm going to run through your house".
4. In evidence Mr Auimatagi accepted that on the day in question, having heard these threats, he determined that he would go and confront the victim. He went to the home armed with a variety of weapons and in company. It is self-evident that as the victim was not at the house, he broke in and ran through his house. He told me he was angry and upset. He was also affected by the drug "ice" (methylamphetamine). Whether or not he thought the male offender was there or not, he did not pause long before he kicked in the door and he accepts he was not to know that the wife and children would not be at the home.
5. He said that he intended to intimidate the victim. He also said he also had the money to repay the debt.

Relevant factors on sentence

1. To go into another person's home, armed, in company with another, intent on intimidation, and do what he did and display that degree of animosity, by what is shown in the video, calls for a custodial sentence. The section 5 Crimes (Sentencing Procedure) Act 1999 threshold has been crossed.
2. The offence to which he has pleaded guilty carries a maximum penalty of 14 years imprisonment: s 113(2) of the Crimes Act 1900. That maximum is one guide to the exercise of my discretion. There is also a matter on a Form 1, the damage to the property, that I must take that matter into account. It does, to a degree, increase the penalty that must be imposed.
3. His criminal record does not entitle him to the leniency often shown first offenders. There is a matter of damage property on his record, a road rage incident, but there are no other crimes involving violence.
4. There are reasons here to moderate the sentence. Because of their volume and the time, I will not go through all of the material, which I have had an opportunity of reading a couple of times because the matter has been adjourned due to a COVID lockdown.
5. There is more than abundant evidence that Mr Auimatagi was, as a child, the victim of a serious sexual assault, which has had lasting consequences. It has also led to a split in his family. Supportive family members were available for him at the time and are available for him now.
6. His wife has given evidence, and her affidavit sets out matters that indicate that she and the family believe in Mr Auimatagi and will provide support for him. A challenge was made to one aspect of her evidence and her apparent forgetfulness of one of the incidents on his record but I accept her as a witness of truth
7. It would appear that she was aware that he was using illicit drugs but the violent aspects that often accompany methylamphetamine were not known to her.
8. It is also clear from his own evidence that Mr Auimatagi when he is in a position of stress has drug use as a default position. Given his background and given his history this is not at all unusual. These matters are fully addressed in the comprehensive report prepared by consultant psychologist Mr Ballardie.
9. Mr Ballardie, after testing and interview, concludes that Mr Auimatagi has a major depressive disorder, a generalised anxiety disorder, possibly adult attention deficit hyperactivity disorder, post-traumatic stress disorder and a drug use disorder. He finds there is a causal connection between external stressors and exacerbation of his mental state. This in turn is related to his high level of substance abuse and that high level of substance abuse is in turn related to the offence.
10. Mr Ballardie notes a regular problem with controlling his capacity to avoid using illicit drugs and the effects of his various conditions on his capacity to make rational decisions. So far as risk of future offending is concerned he notes a fair level of insight and some positive motivating factors. And, if they can be put in place his risk of reoffending can be moderated. But that will involve quite extensive work dealing with both the drug addiction and the deeper causes of that addiction relating to trauma.
11. Mr Auimatagi has spoken to the Community Restorative Centre, and has received assistance from them. He has been given the details of local organisations that specialise in alcohol and other drug treatment. A treatment plan can be put in place to deal with the underlying trauma.
12. He was unemployed when the offence occurred. There is work available to him. It is important to note that the loss of work, and the status and responsibility that came with working, at the beginning of the COVID pandemic was one trigger factor to his relapse into drug use.

Moral culpability

1. The impact of trauma on his decision making process can be related to a reduction in moral culpability. Exposure to violence when a child can help explain recourse to violence when frustrated, and their moral culpability for their inability to control that impulse may be substantially reduced: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]; Nasrallah v R [2021] NSWCCA 207 at [111].
2. It also needs to be understood that in such situations there is always a danger that if untreated and unmanaged it can make a person more dangerous. And were there to be repetitions of this type of offending displayed here certainly that consideration would have significantly more relevance. But here, given the absence of any significant violence in his history, and the accepted provocation, the more mitigatory factors referred to in Bugmy at [44] can have effect.
3. The Court also has to take care in imprisoning for any lengthy period of time a father and caregiver. There is always significant disruption to families in such situations and they, in turn, can cause trauma to children courts should avoid if at all possible. This is not to say that parents cannot be imprisoned; this is not an R v Edwards (1996) 90 A Crim R 510 situation.

Impact of deportation

1. Mr Auimatagi is, because of the provisions of the Migration Act 1958 at risk of deportation back to New Zealand. The material before me would indicate that he has made his home here and that there would be a risk of re-exacerbating the trauma from his childhood abuse where he to be deported. But that is not a matter that I can take into account on sentence while it may be a matter raised if migration proceedings are commenced.

Submissions

1. The written submissions of the Crown, spoken to by Mr Lee, note the objective seriousness of the offence and the fact that it was a family home that was invaded. Thankfully no-one was home which would have made this a much more significant offence. The comprehensive submissions of Mr Kondich, of counsel, were helpful cover most of the areas relevant to this sentencing exercise. One area of dispute is whether drug use can be used to moderate the objective seriousness of the offence. I think it is clear from what fell from the Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, that drug use is not a mitigating factor. Bu it is a relevant consideration that has to be taken into account. There is still continuing debate amongst judges as to whether reduction in moral culpability goes to objective or subjective circumstances: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Tepania v R [2018] NSWCC 247.
2. As to the ultimate disposition Mr Kondich submitted that given the 13 months, approximately, in custody I could deal with the matter pursuant to a Community Correction Order. With respect, the matter was so serious objectively, even if moral culpability matters going to background and trauma were taken into account, that a full time custodial sentence was warranted. The boundary was crossed.
3. This is not a Corrections Order matter. He urged upon the Court an alternative option of an Intensive Correction Order. That is both a lenient, in some circumstances, or a more onerous obligation, as it can place obligations including community service work and specific obligations that have to be met for the term of the order. But I can only consider an intensive correction order after I have formulated the length of any term of imprisonment.

Synthesis

1. As the High Court said in Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357 the ultimate job of a judge is to synthesise all relevant factors, not to put them into categories. I have endeavoured to do so, but as a matter of law the drug use is relevant primary in two respects, one is for me to have some understanding of how it came about and, perhaps more importantly for the offender and his family, what is to be done about it. And it would appear that there is a comprehensive plan in place.
2. Given all of the material before me, given the level of support and the plans that are in place to help the offender deal with his multiple problems to provide support to him, I have formulated the view that had it not been for his plea of guilty a sentence of 3 years would have been imposed upon him. That would leave a sentence of two years 3 months after allowance is made for the utilitarian value of his early guilty plea; s25D Crimes (Sentencing Procedure) Act.
3. It is accepted that there should be a substantial finding of special circumstances in this case. He has done well in custody despite the COVID pandemic which has been an excuse, in some cases, for many prisoners to avoid engaging in programs. COVID restrictions have made his period in custody more burdensome. During recent weeks he has had to endure the lockdown of the John Moroney Centre because of the outbreak there a finding
4. Mr Auimatagi has served enough time that technically I could, taking time served into account, impose a sentence of under two years to commences today and order it be served subject to an Intensive Correction Order.
5. In those circumstances I then have to determine two things: if I am to impose a full-time custodial sentence what is the minimum that could meet all the purposes of sentencing, particularly what was done, or, alternatively, consider whether the balance of the term could be served by way of intensive correction in the community.
6. Here I have sufficient confidence that Mr Auimatagi is motivated to engage in the rehabilitation program that his friends, family and professionals have ready for him. I do not believe that he or the community need an Intensive Correction Order. And although the minimum term that he must serve will not see him get out today, it will see him released before Christmas.
7. In those circumstances I believe that a full-time custodial sentence moderated, as I have said, is the most appropriate penalty in all the circumstances.

Orders

1. You are convicted. I take into account the matter on the Form 1.
2. There will be a sentence of 2 years 3 months. To give effect to a substantial finding of special circumstances there will be a non-parole period of one year and two months. That sentence will commence on 18 September 2020 and you will be release to parole on 17 November 2021. There will be a parole period of one year and one month from that date. The sentence expires 16 December 2022.
3. If you breach your parole you will go back to gaol. The only condition is you accept the supervision and guidance of the Probation and Parole Service. One year two months to serve backdated, released on 17 November 2021.
4. Mr Auimatagi, as I said, you will be released in a bit over a month's time. You will be subject to parole for a period of one year and one month. If you breach your parole and are not of good behaviour you will be returned to custody.
5. It is a condition of your parole that you accept the supervision of the Probation and Parole Service and obey all directions of that service, in particular in relation to drug and alcohol and psychological treatment. I can recommend the two programs Watershed and the Illawarra Drug and Alcohol Service. Take up those opportunities.
6. AUDIO VISUAL LINKS CONCLUDED AT 4.07PM

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