R v Fordham; R v Piukala

District Court of NSW|2019-06-24

Director of Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Offender - Fordham) Younes Espiner Lawyers (Offender - Piukala) File Number(s): 2017/00387060 (Fordham); 2018/00054913 (Piukala)

INTRODUCTION

These are the sentence proceedings against two offenders, John Piukala, file 2018/00054913, and Jay Mathew Fordham, file 2017/00387060. They appeared before me on Monday of this week, 24 June 2019, where they adhered to their pleas of guilty entered in the Local Court to charges in identical terms, contrary to s 98 Crimes Act 1900, expressed thus, that they on 16 August 2017 at Telopea in the State of New South Wales assaulted LC with intent to rob her and at the time of the assault inflicted grievous bodily harm on the said LC whilst being then armed with an offensive weapon, to wit a piece of brick.

PRE-SENENCE CUSTODY

Fordham was arrested on 21 December 2017 and has therefore been in custody since that date. The sentence I intend to impose upon him today shall commence on that day.
Piukala was arrested on 19 February 2018 but was in custody from 30 November 2017 for other offences not connected with this crime. He was serving a sentence from that date to 29 March 2021, including a non‑parole period that is to expire on 29 February 2020. Thus he is subject to that sentence of three years and three months, including a non‑parole period of two years and three months. From 20 February 2019 until 19 November 2020 he is serving a sentence with a non‑parole period to expire on 19 July 2020. For that offence the sentence is one of one year and nine months, including a non‑parole period of one year and five months. The aggregate of these sentences, which are partly concurrent and partly accumulated, is two years and six months non‑parole with a parole period of eight months from 30 November 2017 to 19 July 2020 and ultimately to conclude on 29 March 2021. I propose to commence the sentence to be imposed upon him, on 20 July 2020. In his case one needs to consider what would be the appropriate sentence to be imposed here, bearing in mind that this is part of the criminal misconduct that has led him to be incarcerated for the periods of time that I have identified. Thus in his case the principle of totality has a role to play and the sentence has to be structured to ensure that the sentence I impose in conjunction with those sentences to which is already the subject do not exceed the punishment that he should suffer for the range of his criminality.

THE CO-OFFENDER

There is a co‑offender to whom I am referred in the material tendered by the Crown. This is a female person of the name of Honora Taufahema. She is also known as Nola and is referred to by that name in the agreed statement of facts to which I am to come. She is listed for trial in the District Court here at Parramatta on 5 August 2019. The agreed statement of facts is common to both of these offenders.

THE FACTS

The complainant LC was aged 21 at the time of this crime. Fordham was aged 38 at the time of the offence and Piukala aged 22. They are all respectively one year older at the present time. Taufahema was aged 35 at the time of the offence and is now 37.
The three offenders participated in a joint criminal enterprise, the purpose of which was to rob LC whilst armed on 16 August 2017. The victim and Piukala were not known to each other at the time of the offence. The victim and Taufahema had met about four times previously. The victim had bought Suboxone strips from her in exchange for money or other drugs. The victim and Fordham are known to each other. Fordham lived with her and her fiancé from about August 2016 until January 2017. From December 2016 the victim bought 30 strips of Suboxone from Fordham every month. The victim arranged to buy 100 strips of Suboxone from Fordham's friend on 16 August 2017.
On that day she finished work about 8.15pm and drove home and changed. She put $1,000 cash in one side of her bra and $1,500 in the other. She took her wallet and put it in the driver's door pocket of her motor vehicle. She drove her car to pick up Fordham from his grandmother's house. She picked him up. He occupied the front passenger seat and he provided an address to the victim which he entered into her GPS. She parked at the end of the cul‑de‑sac facing an address in Telopea, and turned off the ignition. Fordham began texting on his mobile phone. He instructed the victim to move her car so that the front was facing up the street. He got out of the car and smoked a cigarette with the door open. He said he was waiting for his mate to text the unit number.
The victim began playing with her phone. She heard a grunt. Piukala was wearing a beige coloured stocking over his head facing the victim and Fordham. He punched Fordham in the stomach and chest area. This was a farce. The victim noticed that the punches appeared to barely make contact. Fordham remained silent and appeared uninjured. Piukala got into the front passenger seat. The victim panicked and tried to drive and jump out of the car but he grabbed her with his left arm across her chest and held her close. The complainant saw he was holding an object that looked like part of a brick that had been broken into a triangle cone shape with a stocking over it. He hit her over the back of the head multiple times using the brick. He asked the complainant twice, "Where's the coke?" She was rendered unconscious.
She regained consciousness and saw Piukala running away up the street on the right‑hand side of the road and she lost consciousness again. She felt paralysed. She was unable to move. She saw in the rear vision mirror that she was covered in blood. She moved her right hand to the steering wheel and sounded the horn for a few minutes. She tried to call triple‑0 but was unable to do so because her head was spinning. She went back to sounding the horn for about 20 to 30 minutes. She was fearful that nobody would come to help. She felt that she was going to pass out. She was fearful that she might die. She got out of the car and made herself visible. She rolled out of the driver's side and lay in the recovery position on her right‑hand side calling for help. About 15 minutes later a passer‑by came and assisted and called triple‑0.
She was taken by ambulance to Westmead Hospital Emergency Department. Her initial Glasgow Coma Score was 11‑13 of 15. She was intubated due to the fluctuating Glasgow Coma Score. A CT brain scan was performed on 17 August 2017 which showed acute comminuted fracture through the right occipital bone with subjacent subarachnoid haemorrhage, intraparenchymal haemorrhage, mild obstructive hydrocephalus, right posterior cervical paravertebral haematoma with extensive soft tissue and subcutaneous emphysema extending up the base of her neck. A tracheostomy was inserted on 29 August 2017. She was found to have right cranial nerve palsies.
An MRI was performed. This demonstrated a tract of haemorrhagic blood product in her brain extending through the right cerebellar hemisphere and into the right posterior cervicomedullary junction from the side of the right occipital bone fracture. She was admitted to the Westmead Brain Injury Unit on 6 September 2017. A percutaneous endoscopic gastrostomy was inserted on 29 September 2018 because she was unable to swallow. She was later transferred to the Liverpool Brain Injury Unit. The injuries were consistent with grievous bodily harm; some of the cranial nerve palsy may be permanent. The phrase "consistent with grievous bodily harm" in my assessment is an understatement.
Fordham ran from the car once Piukala had arrived. He walked up towards the Telopea shops and waited there for some time. He made his way to Telopea train station and then to his brother's house. He was contacted by Granville detectives and attended the Bankstown police station at their request. He was a suspect at the time but not under arrest. He participated in an electronically recorded interview with the police in which he made false representations in the following terms: 1. He described the assailant and the car and said, 'I just felt this crack on the back of my head and it was, definitely it had, it had to be metal cause I ‑ it really, really hurt'. He continued, 'As soon as I felt the impact, I, I just went out, pretty much. But I was still lucid till a couple of seconds after I hit the ground because, as I was going down, I seen out of the corner of my eye the guy just bounced straight in the car and I, I heard LC, like, no, like scream a little bit and beep the horn and as my head hit the ground, I'm looking toward the back flat and I've seen Nola come around the back of the unit'; 2. The next thing he remembers was wandering around and going to the shops. He was scared of being shot; 3. He said Nola called him and she said, 'Where ‑ were you there, I'm so sorry, I didn't know you were there'. Nola called later again and requested that he go to unit 29, unit 505. He said there was guy in the background saying, 'We didn't get nothing', and Nola told Jay, 'You should have just took it off her, Jay'; 4. He described the assailant as having over his face 'something white... like a plastic bag but one you could see through a little bit ... Nola had the same thing on as well'; 5. He said he told LC, 'Don't get all in the number one day because I know what they're like, if they've got too much to get, they will, you know, they'll hurt people for it'; 6. He told police that Nola was thinking about robbing LC's house."
Piukala and an unknown female were captured on closed‑circuit television entering the unit foyer at the premises in Telopea at 21:36 hours. They appeared to be out of breath. They entered the lift. Taufahema was observed on the CCTV footage to have returned to the unit foyer of her sister's unit block at the premises in Telopea at 21:38 hours. In the investigation that followed CCTV was recovered from Parramatta City Council, the Dundas Community Centre, the IGA at Telopea, the Telopea train station, Sophie Street in Telopea, and Budget Petrol at Telopea. The footage harvested showed Fordham at the Telopea shops shortly after the incident and then at the train station where he caught a taxi.
On 16 August 2017 Piukala, Taufahema and an unknown female are depicted on closed‑circuit TV footage from the unit foyer at the premises in Telopea, leaving the unit block at 21:01:38 hours. The same unknown female returned at 21:28:48 hours, entered the lift, and a short time later went back out of the unit block from the front entry at 21:30:40 hours.
Police conducted a search of the premises in Telopea on 17 August 2017. A red and blue patterned pillowcase was found by police on the front courtyard of the unit block at Sturt Street, Telopea. The balcony of unit 505 overlooks this courtyard. Within the pillowcase the police located the victim's black wallet that she had earlier placed in the motor vehicle. The police also found a Tasmania Prison Service letter that was analysed and revealed a fingerprint matched to Piukala.
Telephone and mobile phone records were obtained. An examination of Taufahema's and Fordham's mobile phone numbers revealed various communications. They are particularised at p 4 and 5 and of 6 of the statement of facts. The first group were on 8 August 2017, some time before the commission of this offence, commencing at 22:26 hours up to 22:58:25 hours. This exchange involved Fordham asking Taufahema about whether she had strips for sale and negotiating a price. The exchanges include a representation in the following terms: "Can u get to Bankstown? I can't get there. The only way I could get there is if I tell LC I've got some and u send someone else out with them. That way I'll ‑ or let me come in get the strips and take them out there ‑ come out, take them out, then bring the paper in because she don't trust no more anyone but u trust me. Yeah, u know where I" and it continues "I would not fuck u over."
These appear to be communications by Fordham to Taufahema. There is reference to Taufahema not trusting the victim, and Fordham's representation: "Look, I give u my word we can set her up big time but I need to get her trust back. Yeah. I got mine OZ for her. I did the whole deal. She gave me half a fucking gram. Fuck her. I got no loyalty to her," and then there is reference to "much bigger paper to be made".
Paper is clearly a reference to money.
The next list of communications included in the facts was on 15 August 2017 between the hours of 17:08:25 hours through to 18:20:46 hours. This sequence includes the proposition: "But u good to do LC, yeah," and then "OMG Jay...fkn oaf brutha! I've got dis staunch dude 2 do it with us... algud? Wem???" Then by Fordham, "I'll be with her when u do it but so we might be able to get to do it more than one time," and then Taufahema, "Make it happen, Jay," and Fordham, "In the next week or two, 100%".
On 16 August 2017 there was a series of interactions between 10:47:01 through to 08:22:58 hours on 17 August 2017, again between Fordham and Taufahema, in the course of which there is reference to the victim having at least 1,500 on her and Fordham needing to pay: "this guy I owe or I'd wait till I could get more out of her but we can always do her house as well. When u got wheels we can drive past and I'll explain the rest to u. Even if she has 3,000 on her I really need only 500, whatever else is yours," and then, "Look, I just made it better for us now. I want 800 but she will have 2,500. That will leave u with 1,700. Yeah. U happy with that" and then there is further discussion in anticipation of what was about to occur, including a representation at 20:06:55, "She will have it all on her in car, 100%, just don't go too hard on her, u know what I mean," and then, "Yeah. Oi, make sure u leave the door unlocked and let us know when you're on your way," and then, "Yeah, but if she has central locking u need something to smash the window. I'll leave it down halfway if I can".
Then, "Text me when u want me to jump out of the car and I'll walk, like, going into his house. Okay. Your last text was empty," and then, "Check her tits and shit as well because she could put it there". This I would understand to be a representation to money being secreted in her brassiere.
I have not quoted all of the text messages that passed between these two. They seem to be at least at present the more significant exchanges in the assessment of the level of misconduct upon which Fordham was engaging in the commission of this crime in conjunction with the arrangement he had with Taufahema and this joint criminal enterprise.
On 30 November 2017 Piukala participated in an interview. He denied involvement or knowing what happened. He declined to comment upon the CCTV still images that had been raised from the television product. He did not know how his fingerprint could be found on the piece of paper to which I referred. He deferred answering about whether he would participate in an identification parade and he denied being the person seen by way of CCTV to have thrown an object onto a roof nearby to where the offence was committed.
On 21 December 2017 Fordham was arrested and conveyed to Bankstown police station. He was introduced to the custody manager. The Law Enforcement (Powers and Responsibilities) Act 2002 provisions were observed. He participated in an electronically recorded interview and made admissions to the police regarding his involvement in the crime. In the course of this interview he told them he did not return to the car. The plan was for him to be held upstairs and they were going to tell the victim that they were going to hurt him unless she gave him the money that she brought to buy the Suboxone strips in order to pay off his $1,000 drug debt. He told the police that he did not know this had happened and he did not want her to get hurt at all. He said he thought she would just handover the money and did not know that they were going to do anything to her. He said he saw the assailant's hand going into her top or something, maybe trying to find the money. He said that the victim would have had $2,500 on her.
He spoke of it taking 15 minutes to get to the train station. He received a phone call from Taufahema. He called his brother to request a taxi and also requested a taxi for his girlfriend multiple times. He identified himself in closed‑circuit television footage stills and he agreed that he had made arrangements with Taufahema to rob the victim of money and referred to Taufahema writing "LIL" in her messages to him confirming, as I understand it, her identity in those text messages.
On 19 February 2018 Piukala was arrested. He participated in another interview. He was told that the victim had picked him out of an identification parade to which he replied, "I don't know. I don't know why she would pick me".
On 20 April 2018 Taufahema was arrested. She denied knowing where the premises in Telopea was located. She referred to her sister and her address in Sturt Street where she lived with her boyfriend, John Piukala, known as JM. Her address was in Smith Street at Regents Park. She knew the victim. She said she would score ice from her. She said that she and Fordham were texting on the night of the 16th because they were going to do a swap, bupe in exchange for ice or money, but he did not turn up. The arrangement was for him to come to her sister's house and knock on the door. The discussions did not involve the victim and the deal was for $150 worth of strips. She denied other aspects that do not need further rehearsal at this point.

THE SERIOUSNESS OF THE OFFENCE

In her written submissions the Crown argues that the objective gravity of this offence is above mid-range, a proposition with which I agree. She referred to the planning for the commission of this offence some ten days before the offence occurred, the entry of Piukala to the car with his face covered, and the blows struck to the victim's head multiple times using a piece of broken brick. The use of a weapon is an element of the offence and not of itself an aggravating factor, but the manner in which it was used with repeated blows leaving these grievous injuries is, I agree, relevant to the assessment of objective seriousness.
It is not an element of the offence that the offenders intended to cause grievous bodily harm. Thus it is submitted that the objective seriousness is elevated by the intensity of the force used and the high level of violence involved in the commission of the offence with the infliction of numerous blows to a particularly vulnerable part of the victim's body. The ferocity of the attack is reflected in the injuries she suffered and their severity.
Aggravating factors to which the Crown has pointed include Piukala's record of prior convictions and the need to give consideration to Veen v R (No 2) (1988) 164 CLR 465. Piukala was in company with another masked person at the time as indicated in the agreed facts. The Crown refers to communications via text message with Taufahema. They provided the address where the offence was to take place and her presence proximate to Piukala at the time of the commission of the offence. Immediately after the offending Piukala entered the foyer of the premises in Telopea together with an unknown female, both of them breathless, and Taufahema entered two minutes later. Fordham acknowledged the presence of Taufahema proximate to the commission of the offence and he used the pronoun "they" in the course of his interaction with the police officers.
I am reminded of what was said by the Court of Criminal Appeal in White v The Queen [2016] NSWCCA 190 at 94. This was a topic that gave rise to submissions on behalf of Piukala by Mr Averre of counsel drawing the distinction between circumstances in which the victim was unaware of whether the offender was in company with another in which case, although it is part of the factual matrix that the offence was committed in company, should not be taken into account as an aggravating factor. I was reminded of para 94 of the judgment in White v The Queen where Simpson JA wrote:
"The decisions concerning the construction to be placed on the element of an offence being committed in company are, therefore, in my opinion, relevant to the construction to be given to s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999. I do not take those statements to be an exhaustive statement of what might be held to be "in company". Each case will depend upon its own facts. It is appropriate, however, to focus on at least three questions:
(i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation or otherwise;
(ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or "emboldening" that person;
(iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender."
I do not understand her Honour to be expressing the view that these three propositions are alternatives, or that they must all be shown to be present in particular circumstance before the offence can be seen to have been perpetrated in company. They are, as I perceive her Honour's reasons, circumstances that are to be brought to account when determining whether or not a particular case involves the commission of an offence in company, and I am satisfied in this case that the presence of the other offenders in the circumstances described were such as to provide support and encouragement at least to Piukala in the commission of the crime where he took the role of inflicting the violence with a view to committing the crime. Also the offenders were there together present sharing the common purpose of the offence upon which they were engaged. To that extent I accept the submissions made by the Crown with regard to that aggravating factor and I bring them to account.
The injury and emotional harm caused to the victim was substantial, and I shall come to that further when I refer to the victim impact statement. I accept that I do not have any medical evidence to support the emotional sequelae described by the victim but the representation contained in the statement is compelling. I have not overlooked that it was not the subject of sworn evidence or subject to cross‑examination but there was nothing said to me that I should take any view other than this was a substantial infliction of harm. Grievous bodily harm is an element of the offence but I can take into account the extent of the injury that was suffered. There was a measure of planning and organisation on the commission of this crime. I have brought that to account and the offence was committed for financial gain. The Crown has conceded that Fordham has a more modest record of convictions.
It is for those reasons that I find the offence to be above mid-range of objective seriousness.

THE VICTIM IMPACT STATEMENT

The victim impact statement I shall now describe. The victim was present in Court when the case was presented. She did not read her statement. It was read by the Crown. She speaks of the breach of trust involved in the commission of this crime against her. She refers to the person John, her partner, and how they were deceived as a consequence of the trust generated under which Fordham was allowed to share their accommodation. She speaks of having been lured by someone she considered a friend into the ambush where she was taken by surprise without any idea what was about to happen. She had no time to escape or to provide defence for herself. She refers to being struck six times that she recalls. She was she thought left for dead. She watched both offenders running away. She felt paralysed. She thought she was going to die. She had fought for her life that night and in the months that followed. She wondered whether they could hear her desperately sounding her horn in the hope that someone would come to help her. Clearly, they left her in her terrible state and it was a stranger who came along sometime later before help could be provided.
She describes her perception of her circumstance, her injuries and what might have resulted from what occurred. She heard someone say while she was in this state, "See that jelly stuff, that's brain matter". Whether that is something that occurred is not entirely clear but it was her perception of what happened. She recalled the event as it unfolded. She spoke of the failed attempt of Josh, which I take to be a reference to Fordham, to disguise himself. It is a little confusing because Josh does not appear elsewhere. She spoke of being placed in a coma. She spoke of her brain injury, the fracture to her skull, 30 staples to the back of her head and neck, the severe nerve damage, being left virtually blind, unable to eat or drink and the development of pneumonia. She referred to being placed on an "incubator" ‑ I take that to have been an intended reference to intubator. She was unable to speak. There was a cut into her neck to enable her to breathe. The statement continues.
It was eight months after the event that she was able to hear her voice again; being able to speak once the tube was removed from her throat. She was able to drive after 18 months. Her balance is still noticeably off. Her vision is limited. Her swallow is not restored. She consumes a liquid diet largely. She suffers anxiety.
Reading the document, one can understand the horror that she experienced. A feature of this case is that she was herself involved in a measure of criminality in the acquisition of substances which she should not have been attempting to buy. Regardless of that, no person in the circumstances before her should have been required to experience what she suffered.
I would make it clear that I have taken the victim impact statement as evidence of the impact of this crime upon the victim, together with the contribution it makes toward the assessment of the grievous bodily harm that she suffered, but I do not otherwise take it into account as an aggravating factor in assessment of the misconduct upon which these offenders engaged or the punishment that they have so justly deserved as a result of their crime. Indeed, the emotional sequelae that she suffered are what one might expect from such an event.

THE OFFENDERS

The offender Piukala will be 25 years of age later this year. His record of antecedents for his age is extensive; the antecedent report is of seven pages. His first entry was in the Children's Court at Parramatta in February 2010 for assaulting a police officer in the execution of duty and using offensive language. He was then in Court in May 2010 for recklessly wounding, another whilst in company, in July 2012 in the Children's Court for recklessly causing grievous bodily harm and affray. He suffered control orders. In February 2019 he was charged with robbery armed with an offensive weapon for which he was imprisoned for three years and four months with a non‑parole period of two years and three months. He was charged in respect of that offence in November 2017. The sentence was imposed after the commission of the offence with which I am concerned.
Out of sequence he was in Court in March 2009 for affray in a Children's Court and for assault occasioning actual bodily harm; in March 2009, again for assault occasioning actual bodily harm and affray; in July 2012 for larceny in a Children's Court; in January 2013 for a Children's Court for introducing a drug into a detention centre and possessing a prohibited drug; in May 2014 for affray, again in the Children's Court; and then in December 2016 in the Local Court for possessing a prohibited drug; in February 2019 for assault occasioning actual bodily harm in the Local Court. The Courts, both in children's jurisdiction in the adult Courts, have employed different sentencing options, no doubt to address, to the extent that the Courts might, the misconduct upon which the offender engaged with a view to not only punish him but also to address the prospects for rehabilitation. Now he is facing a significant period of imprisonment for this serious crime.
The Crown has also provided me with facts relevant to a robbery matter. This refers to his relationship with Sandra Taufahema and their occupation of premises in Sturt Street, Telopea. This was a joint criminal enterprise in which he and two people named Taufahema and another person named Johnson engaged. They went to a school. Piukala was armed with a 15 centimetre hunting knife. This occurred on 26 October 2017. Johnson drove the motor car Piukala masked his appearance with a balaclava. He put the knife to the stomach of a female administrator in the school office. He told the administrator, "I want all the money, listen to me, just do it, don't scream, do as you're told and you won't get hurt". The administrator wisely replied, "Yeah, darling take everything, take anything you want". $5,180 in cash was taken. The school was placed in lockdown thereafter and the investigation included the recovery of CCTV footage. The offender was arrested on 30 November 2017 and he denied any involvement. DNA matching him and Johnson were recovered from Johnson's car. Search warrants were executed at the Sturt Street premises and the hunting knife was recovered.
I also have some facts before me regarding an assault occasioning actual bodily harm which occurred in the John Morony Correctional Facility. The offender and others attacked another inmate using a metal sandwich press and a broom handle. The attack included one of the perpetrators climbing on a table before jumping onto the head of the victim. He was taken to hospital with a broken nose and bruising and swelling to the face and head.
I agree with the Crown's submission that in the case of this offender Veen v R (No 2) has a role to play in the assessment of a sentence in this case.
Fordham, Jay Mathew Fordham, is at the present time 40. He will reach 41 later this year. He has a record of antecedents that extend to seven pages. As the Crown concedes, his record of offending is not as profound. His propensity is to drive a motor vehicle when he is not permitted to do so. There are a number of offences of driving whilst disqualified, traffic offences, possess prohibited drug, driving with a licence that had expired, dishonestly obtaining property by deception and goods in custody, amongst other offences. Although he has not been a violent offender until his involvement in this crime, he has demonstrated a persistent disregard of his obligations and a willingness to commit offences within the parameters of those that seem to attract him.
Neither of the offenders gave evidence. I am compelled to come to a conclusion regarding them with regard to the psychologists' assessments that have been provided.
First of all in the case of Piukala, I note that there is a report written on 1 March 2019 by Thea Gumbert‑Jourjon, psychologist. She assessed the offender Piukala by way of clinical interview and some psychological assessment tests with the benefit of a letter of instruction, the agreed facts, criminal history and a report. He was assessed via an audio visual link. He could not provide written consent to consult with third parties because of that.
It is a recurrent theme in psychologists' reports where assessments are made via audio visual link. It is less than optimum I would have thought to assess the subject and provide a reliable report when the interviewer is not face to face, even with modern technology that is available. That said, the report must be attributed the appropriate weight bearing in mind the circumspection required in the absence of evidence from the offenders, as discussed by Smart AJ in the decision of R v Qutami [2001] NSWCCA 353.
The interview lasted for about 90 minutes. The questionnaire administered, perhaps to replace what might have otherwise been formal psychometric testing, was offered to assess his emotional functioning. The procedure followed was to read the questions and have him provide verbal responses. He represented that due to his remand status he is unable to participate in employment or therapeutic programs. I would accept that it is more difficult for people on remand to have access to therapeutic programs or employment, but as recently as today I had a young man appear before me who, although on remand, was able to gain access to facilities for his drug problems when he was in custody. There was nothing put before me to show that he had made any attempt or application for opportunities in custody, but on balance it would in my view be appropriate to proceed on the basis that he has had difficulty availing himself of whatever might be there to assist him.
He comes from Tongan parents. His father had four daughters from a previous relationship and his mother had a daughter and two sons, and thus he has half‑siblings. He thought his childhood was all right and normal but he often witnessed his father assaulting his mother and witnessed his siblings being bashed for misbehaving, but he saw that as just normal violence and saw it as justified because it was not for no reason. He enjoys good relationships with his siblings and both parents. His father was diagnosed with cancer and Parkinson's disease and moved to Queensland to live closer to his adult children. He also relocated to Queensland to provide care for him. His father died in 2016 and the offender then returned to Sydney.
His mother became seriously ill with vasculitis and he is fearful, trying to prepare himself for the possibility that she will die while he remains in custody. I do not have any further material upon which to assess the likelihood of that or what prognosis his mother might have. He admitted that he was really a violent person with a really bad temper. He was often in trouble in school and was expelled in year eight for fighting. He spent a year at a school for specific purposes and then went into juvenile custody and was never returned to school. He later worked towards completing year ten in the juvenile correction centre but was released prior to finishing. He has never held formal employment.
He began using alcohol at the age of 16. He tried a few different drugs in his teens including cannabis, cocaine and heroin. The only substance he used regularly though was methylamphetamine to which he was heavily addicted and which he began using after his father's death in 2016. He embarked upon the drug use hoping that it would make him feel better. He resorted to theft thereafter to fund his habit. He was assessed to exhibit the characteristics of someone with a stimulant use disorder. I bear in mind that psychologists are not qualified to offer diagnoses but I would accept that they can make observations of presentation that might be consistent with such a diagnosis that could be made by a properly qualified practitioner who might do so.
He candidly admits that he has been using methamphetamine in custody and occasionally other prohibited drugs because he needed something to do to pass the time. He is in need of drug treatment and part of the submissions included the proposition that I refer him for the program at Parklea. He said he wants to stay away from drugs if he can but half of him really enjoys them. He has had fluctuating moods and anxiety about his forthcoming proceedings. Part of his violence in the past included a fight in which he stabbed two youths. This occurred when he engaged in the altercation and picked up a knife that one of them dropped. When dealing with the charge he said he could not remember the offence clearly because of his drug use at the time but he admitted his culpability and could provide some context.
He reported that Fordham was an acquaintance with whom he had met through drug contacts. Both needed money to support their drug habits and Fordham suggested they arrange to rob the victim. This is really evidence only admissible against Mr Piukala. It reflects his candour I might say. It cannot be taken into account in the case against Fordham, whose counsel specifically asked me to reject that evidence when assessing Fordham's culpability. However there is another problem with Fordham's representations to which I shall come when I deal with his report.
He is attributed with remorse. He feels very bad about what occurred. He said that he deserved whatever sentence the judge might hand down. He said that he is a half decent person but when he begins using drugs "it gets out of hand".
Psychometric testing for the purposes of depression, anxiety and stress revealed that he fell within the extremely severe category for depression, extremely severe category for anxiety and with severe difficulties for stress. He is said, as I have indicated, to meet the criteria for a stimulant use disorder. No further diagnosis is advanced, though there might be some indication of an impulse control disorder. In the formulation and opinion section the first paragraph is in the following terms: "Mr Piukala's account of his upbringing suggests normalisation of violence within the family home. He was notably prone to minimise assaults against him as 'normal violence' or justified by his behaviour. In combination with his report of his impulsivity and poor anger control, his early experiences of violence as a means of conflict resolution likely contributed to a pattern of externalising aggressive behaviour in adolescence. By his own account, these problems were further exacerbated by substance misuse. Mr Piukala reports becoming dependent upon methamphetamine following his father's death, which further contributed to a pattern of acquisitive offending."
The reference to conflict resolution and aggressive behaviour in confrontational circumstances is not really a significant consideration in this case where he was a participant in a joint criminal enterprise to perpetrate a robbery in the commission of which he armed himself with a brick and when a measure of resistance was offered by the victim he beat her mercilessly leaving her so profoundly injured.
The primary areas of concern are his substance misuse and impulsive aggression of which there can be little doubt when one considers what he did to this young woman. There is reference to the benefits that might derive from therapeutic programs focused on his particular areas of need.
Fordham's psychologist wrote on 16 April 2019; this was Megan Godbee, who again interviewed by way of audio visual link for one hour and 20 minutes with insufficient time for psychometric testing. I referred to there being insufficient facility for formal psychometric testing in the report from Gumbert‑Jourjon when I was dealing with the questionnaire discussed at p 2 of that report, but I note that there was some psychometric testing to which I will later refer.
Returning to this report, he is the eldest of three sons from parents who shared a very volatile relationship. He would see his father return home on weekends intoxicated and engage in violence towards his mother, but his assessment was that they must have loved each other otherwise she would have left. That reflects a significant misunderstanding of the dynamics within a domestic violence setting.
His father was also violent towards the children. He was generally disinterested in them, his focus being upon his drinking. He felt unsafe in the presence of and unloved by his father, but this resulted in him forming a close relationship with his mother because they comforted each other when faced with the father's depravations. His younger brother was born when the offender was 18 years old. His father had calmed down apparently at that point and his account of childhood is said to have been focused upon a mismatch between his early years and his later childhood centring on his father's violence. His mother was the primary disciplinarian but he did not remember there having ever been consequences for his misbehaviour. There was no abuse or other trauma beyond his father's violence. His father worked for various companies while his mother stayed at home and thus, although they were financially sound, their financial circumstances were described as tight.
He left home at 18 to live with his then girlfriend but he came back to live with his mother from time to time and he plans to live with his parents upon release, thus the marriage seems to be continuing. His brother closest in age has a history of heroin and methylamphetamine use but has been abstinent for some five years. His father is currently suffering from depression and anxiety and paranoia as described. His childhood was normal other than the conduct of his father. He was disinterested in school, he had difficulties reading, he left when aged 16, took up wall and floor tiling, was a tree lopper and was employed as a forklift driver. He was unemployed for the three years before his arrest for this offence which he attributed to his misuse of drugs.
He reported that he was hit in the head at the time of this offence and experienced short term difficulties with balance as well as a headache. He denied noticing any long term neurological concerns associated with this head injury. That representation cannot be accurate and I reject it.
He spoke of his cannabis use, his occasional use of methylamphetamine and misuse of Valium. He was introduced to heroin at the age of 18 by his younger brother. He began using Suboxone in his early 30s. He has successfully abstained from heroin but it appears he was using Suboxone at the time of the offence. He began using methylamphetamine at the age of 33 about the time he reduced his use of heroin. That was costing him significant money, about $100 every second day.
He has abstained from all substances for some 16 months that he has been in custody, currently on methadone.
He engaged in irregular gambling since the age of 19 and it became a problem when he was using methylamphetamine. He would lose up to $500 on occasions. All the money that he had was in due course going to gambling and drugs. He reported that he distanced himself from drug using peers, supported by his mother and both brothers, and feels he has enough support within his family.
There is reference to his first relationship. He has a daughter who is currently 18 years old. He had regular contact with her after his relationship with her mother ended. He has not been in contact with her since he entered prison but his mother maintains contact with her granddaughter. There is reference to his second relationship when he was in his mid 30s of about six years. This was, as described, nothing less than toxic. She was dishonest, she was guilty of infidelity and together they engaged in drug use.
There is another misrepresentation here in para 21, "Mr Fordham said that, on the day of his indexed offence, his partner had gambled all their money away, which reportedly motivated his offending". There are questions over that passage in light of the history revealed in the text communications between this offender and Taufahema in the days leading up to the commission of the offence, thus it could not be said that he was motivated to participate in the crime because on the day of the offence his partner had gambled away all their money. There is reference to his antecedents, the facts regarding the offence, and then in para 24 of the report the following appears, "Mr Fordham indicated that he justified the robbery to himself by thinking that 'no one would get hurt' and they would 'just get the money'. He said that, upon reflection, he thinks 'How could I be so stupid?' and feels 'really upset' that he engaged in the behaviour". Again, that doesn't sit at all comfortably with what is found in the communications that passed between this offender and Taufahema.
There is a psychological assessment offered and then formulation and recommendations which include the proposition that both alcohol abuse and violence were modelled by his father during his developmental years which normalised this behaviour for him. Of course that does not sit comfortably with the proposition that he had a supportive and caring relationship with his mother to whom he gravitated, both of them suffering at the hands of his father in those early years of his life, both of whom were victimised by the father allegedly, so that whatever conduct his father might have engaged upon, to suggest that this normalised such behaviour for him would mean that the contribution made by his mother from the alternative perspective has not contributed to his development significantly at all. It is a little hard to assimilate both propositions.
That said, I would accept that if he was exposed to violence and alcohol misuse by his father. As described, it must have had some impact upon his psychology as he went through his formative years, perhaps unable to progress into adulthood without the impact of that influence. There is reference to what was a relatively stable work history until his gambling and misuse of drugs, and then at para 27 there is the reference to his partner's gambling which resulted in a perceived urgent need for funds, the urgency of course not sitting comfortably with the amount of time over which he communicated with Taufahema in the planning of this enterprise.
He presented as being motivated to avoid further offending and to engage in drug and alcohol rehabilitation. It is recommended that he take the opportunity to undertake intensive drug and alcohol rehabilitation to assist in developing insight into the triggers for the substance use and to identify strategies that would help him cope.

SUBMISSIONS

Mr Averre provided written submissions supporting an outcome that would see his client exposed to an appropriate sentence, recognising that imprisonment is the option of last resort but acknowledging that there is no alternative to fulltime custody in this case. I am reminded of the terms of s 3A Crimes (Sentencing Procedure) Act 1999; there must be adequate punishment for this egregious crime; there must be consideration given to general and specific deterrence; protection of the community from the offender, a sentence that will do what it can to promote his rehabilitation, make him accountable, denounce his conduct and recognise the extensive harm caused to the victim and to the community generally. I am reminded of the principles relevant to the assessment of the standard non‑parole period provisions with regard to Muldrock v The Queen Ibid.
There is reference to what the authorities say about injury that amounts to grievous bodily harm. There can be no doubt that this is grievous bodily harm of a high order. There is a submission made that although there was planning in the commission of this objectively very serious offence, to use the terms adopted in the written submissions, the planning seems to have been by way of text message. I do not know what the significance of that might be.
The psychological assessment report is discussed. The sentences to which he has been subject between February 2010 and April 2011 and September 2011 and July 2012 are noted, including the fact that the offences he has committed were both as a juvenile and as an adult, but there was a gap apparently between 2012 and 2017 in a three year period that he spent in Queensland following his release from juvenile detention. I have no record of any misconduct upon which he might have engaged in Queensland so I accept that there is a period where it cannot be shown that he has committed any offences.
There is a discussion of aggravating factors, including the record of convictions which does not aggravate the offending or the sentence to which he is exposed but informs the extent to which specific deterrence are to be given weight and the extent to which he is denied leniency that might have otherwise been available. There is reference to Veen v The Queen (No 2) and the judgment dealing with the relevance of the antecedent criminal history given by the plurality, this offence being committed in December 2017 and the other robbery upon which he was sentenced in February 2019 committed on 26 October 2017, preceding the present offence, and then the other offence of assault occasioning actual bodily harm committed in custody.
Mitigating factors: likelihood of reoffending cannot be said to be other than high in my view. I do not believe he has good prospects of rehabilitation. I am satisfied he has not discharged his burden of proof in that regard, and there are expressions of remorse but whether they are genuine is hard to assess in this case in the material I have in the absence of any evidence from him. A plea of guilty is discussed, including the utilitarian value which is to be assessed at 25%. I take the plea of guilty into account as some measure of contrition and remorse; although I could not see a strong prospect of an acquittal should he have gone to trial. I take into account his time in custody. I have already referred to the totality principle. I have taken into account his substance abuse issues.
There are some psychological aspects to him discussed in the report to which I have referred, including the normalisation of violence and the development of impulsivity and poor anger control and his stimulus use disorder to which I have already referred. I would accept that there are bases upon which on the balance of probabilities to make findings in that regard. He is young, relatively, at 23 years, but he has a terrible record for someone of this age. I am conscious of that and I have brought that to account. I have taken into account that he has a disadvantaged upbringing in accordance with the Bugmy principles.
There has been reference to comparative cases. I was handed some statistics from JIRS which indicated that the most serious case ended up with a sentence of eight years' imprisonment. My own research of s 98 post Muldrock reveals sentences extending up to 20 years for an offence contrary to this provision. I have come in at a level below that bringing to account the youth of the offender and the subjective case that has been presented to me. Objectively though, as I said, this is a very, very serious offence. I am asked to consider the Drug Court Act 1998 and I would if I have the scope to do so make the necessary orders. I find that there are special circumstances. He does need a longer time in the community for supervision but it will not be a large disruption to the ratio in s 44 Crimes (Sentencing Procedure) Act 1999. I have to also bring to account his custody that he is already serving in respect of the other matters to ensure the totality principle is addressed. That is another aspect of special circumstances to be brought to account.
In the case of Mr Fordham, Mr Schaudin of counsel addressed without providing written submissions. His reference to the various matters was relatively brief but on point. He noted the limited record of violence, his compliance in custody, the aspect of his life as a functioning addict, and his reintroduction to the criminal justice system through his misuse of methylamphetamine. He has already and in the past displayed some capacity for rehabilitation. I was asked to ensure that I took care to not bring to account in his case representations attributed to Piukala that were truly not admissible against Mr Fordham. I believe I have not done so.
The Crown's written submissions I might say were comprehensive but at the same time succinct and covered all the matters that I need to bring to account. I have already dealt with the question of objective seriousness and the aggravating and mitigating factors, and the Crown helpfully made reference to the paragraphs in s 21A (2) Crimes (Sentencing Procedure) Act 1999 that are to be brought to account, These were para (d) and consideration of the statements of principle in Veen v R (No 2) Ibid, that the offence was in company, which I have already found in accordance with para (e); that the injury caused to the victim was substantial; the question of emotional harm I would say that was within the range of what one would expect (para (g)); there was planning and organisation (para (n)); the offence was for financial gain (para (o)), but I might say that was an essential or integral characteristic of the attempted robbery.
The record that Fordham has accumulated disentitles him to leniency upon the Crown's submission (para (e)), but it is conceded that a 25% discount is attracted by pleas entered at the earliest opportunity. There is a discussion of the principles relevant to joint criminal enterprise, culpability and parity requiring the Court to consider the conduct of each person assessed by reference to their own conduct. I need to refer to the particular conduct of the individual offender to identify the level of culpability and I believe I have done so when I have gone through the facts. The Crown's submission is that both offenders are criminally culpable to a higher degree, albeit for different reasons, on the basis of their individual conduct. That is a submission with which I agree.
Fordham I accept must have contemplated the substantial risk that the crime would involve significant violence toward the victim; so much must be accepted from the passages to which I referred in the text messages. He was aware that a weapon would be used. He directed the co‑accused Taufahema to arm herself and make sure that she had something in case the victim locked the door and she would need something to smash the window. He was aware that physical violence would form part of the offence, at least in terms of contact to "check her tits and shit as well". He also texted, "Just don't go hard on her, u know what I mean", all supporting the proposition that he contemplated the possibility that Taufahema and Piukala might well use excessive violence against the victim beyond that that was required to simply take her property.
The Crown concedes that he did not personally inflict the violence on the victim but his culpability is said to be of a higher degree. He orchestrated the events. He provided the opportunity. Piukala was also involved in planning and organisation, as reflected in what was attributed to him by the psychologist at para 2.8 of her report. I agree the s 5 Crimes (Sentencing Procedure) Act 1999 threshold has been crossed. There is reference to the misuse of drugs and their addiction. I agree with the Crown's submission that the misuse of drugs is not a mitigating factor in the circumstances and it does not reduce the moral culpability.
The mere fact of drug misuse and drug addiction and the commission of offence does not necessarily result in a lesser sentence, nor does the proposition that Fordham committed the offence to meet gambling debts mitigate his misconduct, but the drugs and the evolution throughout their lives in the circumstances where they developed is a matter that must be brought to account to explain their misconduct. When one looks at the commission of this crime and the manner in which it was pursued and the planning involved I do not accept the view that the moral culpability should be reduced in the circumstances.
The assessment of the risk of committing further offences is discussed. There is nothing before me as to the offenders having sought out programs to address substance use addiction or gambling or their aggression, in particular in the case of Piukala. It is simply put before me that opportunities to do so are limited for persons on remand. As I have said, I accept that to be the case but it would have been preferable to have some evidence of them having sought out opportunities that they were denied because the programs were not available. Specific deterrence is needed for Piukala, taking into account his continued drug use and offending behaviour whilst in custody. Both offenders require appropriate weight for personal deterrence arising from their history of addiction and the real risk of offending associated with their desire to continue with the use of drugs but for the intervention of this investigation leading to their arrest.
The Crown asks that I take care with regard to special circumstances, I am satisfied though that there should be some extended period of time in each case for them to be at large in the community under supervision. Of course whether they are able to achieve that, this sentence in each case will be more than three years, will be entirely a matter for them once they are eligible for consideration of their release to parole, depending upon their performance in custody. This brings me to the final orders in the matter.

FINAL ORDERS

For the reasons I have given I am satisfied that these offenders should be assessed to be at the same level of culpability for this misconduct; there are no reasons before me that would justify a variation of the sentences to be imposed. Parity in my judgment, even though there are differences between them in terms of age, will require a sentence to be imposed which is comparable on each case. It is true that Piukala is younger but he has a woeful record of violent offences, including while in custody, which offsets the difference in ages between the two of them, and as was pointed out by the Crown, the planning and organisation and the facilitative role provided by the offender Fordham and his presence at the scene in the manner described sits with the role that Piukala played actually inflicting the grievous bodily harm that was suffered.
In each case I intend to impose a sentence of imprisonment of 6 years and 9 months. In the case of Fordham, it will be a sentence including a non‑parole period of 5 years. It will commence on 21 December 2017. He will be eligible for parole on 20 December 2022, and the balance of the sentence will expire on 20 September 2024. In the case of Piukala, I specify in his case a non‑parole period of 3 years from 20 July 2020 that will expire on 19 July 2023. There will be a further term of 3 years and 9 months at the expiration of the non‑parole period that will expire on 19 April 2027.
I should add I failed to mention that Mr Schaudin provided me with the public defender's list of examples of sentences for these offences which are included in the material before me and to which I have had access.
In each case the offenders are convicted. In the case of Fordham, I impose a non‑parole period of imprisonment of 5 years commencing on 21 December 2017, expiring on 20 December 2022. I impose a further period of imprisonment of 1 year and 9 months that shall expire on 20 September 2024. I find that there are special circumstances to allow him a longer period of time on parole to pursue rehabilitation and build upon progress if made in the custodial setting.
In the case of Piukala, I convict him of the offence. I specify a non‑parole period of 3 years' imprisonment commencing on 20 July 2020 that shall expire on 19 July 2023. I impose a further period of imprisonment of 3 years and 9 months that shall expire on 19 April 2027.
In each case I have had regard to the terms of s 5A Drug Court Act 1998 and doing the best I can on the material I have, I would find that they are both eligible convicted offenders pursuant to s 18B Drug Court Act 1998.
Pursuant to s 18B Drug Court Act 1998, I will refer the offender in each case to the Drug Court to determine whether the offender should be the subject of a compulsory drug treatment order, and that will involve assessment as to suitability and availability.
I should add that in addition to the sentence examples provided by Mr Schaudin, he provided very brief written submissions summarising the points which he developed in his oral submissions which I had misplaced in the course of the reading of the documents as I delivered the judgment.
Mr Fordham you have got a custodial component of 5 years. The non‑parole period expires on 20 December 2022. You will be eligible for parole by then. It will be a matter for you to behave yourself in custody and maximise your chances, and if you are granted parole you will be then on parole until 20 September 2024.
Mr Piukala, in your case, because of your sentence to which you're already subject, your custodial component is of 3 years commencing on 20 July 2020. That will expire on 19 July 2023, and then you will be on parole for 3 years and 9 months until 19 April 2027.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2019

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Judgment (12 paragraphs)

Cases Cited (7)