R v Lutu

The marital relationship 5The offender and Ms Batirau were both from Fiji. The offender was born and raised on the fire walking island of Beqa (pronounced Benga). He and his wife met when she was posted there to work as a nurse. They formed their relationship there, and migrated to Australia about six years ago to reunite with Ms Batirau's family, who had migrated earlier. 6Ms Batirau came here first with the idea of requalifying as a nurse in this country. That did not occur, but the offender and their two elder children came here to join her some time later. The youngest child was born here. Both the offender and Ms Batirau naturalised as Australian citizens when eligible. 7After the family was reunited, the offender found work in a pet food factory and Ms Batirau stayed home to look after the children and their rented house. 8As is common, their relationship was not all smooth sailing. There were disagreements and arguments. It is an agreed fact that there was a history of domestic violence, and the offender had been subject to an AVO for 12 months after he was convicted of assaulting Ms Batirau in 2008. 9The facts of the 2008 assault are in evidence. In Fiji the family had attended the same church, but in Australia Ms Batirau joined a different church and the offender disapproved. On Mother's day 2008, Ms Batirau suggested that they all attend her church together as a family. It was closer than the offender's church. The offender would not agree and they argued about it. The offender became angry. He kicked a TV unit, breaking the glass, and punched Ms Batirau to the left side of her head. The offender then grabbed Ms. Batirau by the collar of her jumper and threatened her with his clenched right fist. Ms. Batirau was afraid the offender would strike her again, but he did not. Instead he yelled that she should go to work and make the money. The couple's then two children came into the room, the younger one crying. On seeing them the offender let Ms Batirau go. She fled from the house with her younger child down the street to her Pastor's house,who called the police. 10The offender pleaded guilty to common assault and malicious damage to property. He was convicted in the Campbelltown Local Court on 5th September 2008 and a good behaviour bond of 12 months duration was imposed concurrently in respect of each offence. These matters constitute the offender's prior criminal record. There is no other offending of any sort. 11Ms Batirau's statement about the offending of 11th May 2008 was tendered. Some of what Ms Batirau said implies that the offender had struck her on other occasions. She said (at [4]): I have seen this look before and when he gets it he hits me. She also said (at [6]), after the offender had grabbed her collar: He tried to pull me into the kitchen and I know what happen(s) next. And (at [7]): When he is in this mood, I am scared and I wish I was an earthworm to b(u)rrow away from him. 12This evidence, which I accept, does not enable me to make any finding beyond reasonable doubt about the nature and extent of the incidents of violence making up that history of domestic violence. There is no suggestion of any separation or any complete breakdown in their relationship. Their third child was born after the 2008 incident. There is no evidence that the offender ever breached the AVO, nor is there evidence of any violence after it expired. From the history received by psychiatrists who examined the offender for these proceedings it is clear that by January 2013 the marriage was not happy. 13The offender was made redundant from his job in about October 2012. I infer that because of his age and his language difficulties, he speaks Fijian, and his English is very poor, he was unable to find other work. I infer that these circumstances necessitated the family moving house which occurred the day before the murder. 14Since the offender had lost his job he and Ms Batirau frequently quarrelled about money. When he could not find work they tried to alternate with Ms Batirau working and the offender staying home to care for the children. Ms Batirau found a job and took over as breadwinner and provider. When this change occurred, they went to Centrelink to apply for the parenting payment to be made to the offender, but Centrelink refused and continued to pay it to Ms Batirau. The change in their relationship seems to have created resentment on both sides.

The events of Sunday 20th January 2013 15Ms Batirau worked on Sunday, 20th January 2013 and the offender stayed home with the children. Ms Batirau had given the offender money to buy bread of a certain type, which she preferred. The offender bought different bread because the shop which sold Ms Batirau's preferred style was closed. The offender and Ms Batirau had spoken on the telephone during the day. From that conversation Ms Batirau formed the impression that the offender had purchased the bread she wanted, but when she came home after work to have her tea she was disappointed that he had bought the wrong bread, and said so. An argument developed about the shopping and the change. She accused the offender of lying on the phone about where he bought the bread. She called him a liar. He denied it. 16In his account to others, but not initially to the police, the offender says that Ms Batirau, in Fijian, called him the son of an animal or pig, a very humiliating insult in their culture, according to other evidence which I accept. He lost his temper and stood up to hit her with the chair he had been sitting on. Ms Batirau grabbed the chair and offender regained his control somewhat and sat down again. However, the argument continued. 17When Ms Batirau demanded the change from the shopping, the offender went to fetch it. When he returned he saw that his wife was still very angry with him. He formed the impression that she was going to leave him because he had overhead her telling the children to change their clothes because she was taking them out to buy dinner and report the offender to the police. I interpolare , it is not clear what Ms Batirau had to report to the police except perhaps the attempted assault with the chair. 18The offender challenged his wife about what she had said to the children, but she denied saying she was going to the police. This time he did not believe her. The offender became very angry and went to the kitchen taking a long-bladed knife from a container. 19When interviewed by police later, he was asked: Q. You took the knife to frighten her or kill her? A. I took it and stabbed her. He said they were both very angry and when she saw the knife she stood up to stop him. He was unable, or unwilling, to answer any further questions about his intentions in stabbing his wife. He said he had expected her to calm down when he desisted from threatening her with the chair, but she did not. 20He told the police that he believed that Ms Batirau was about to leave him with the children and this would bring their relationship to an end. He also believed that she was going to make some complaint about him to the police, possibly about him threatening her with the chair given his previous conviction. 21A forensic pathologist, Dr M Orde, conducted a post mortem examination on 23rd January 2013. He found and recorded evidence of three incised wounds to the head; six incised wounds to the neck; five penetrating incised wounds to the torso; and four superficial wounds to the torso. Multiple incised injuries were found on Ms Batirau's left arm consistent with what are described as "defence injuries". These injuries included the severing of a major artery crossing the left wrist. Dr Orde expressed the opinion that Ms Batirau died as a result of the many stab wounds penetrating her body injuring her heart, lungs, diaphragm, liver and windpipe. 22I repeat, the attack occurred whilst the children were present in the home watching television. They witnessed the attack. The older children ran outside raising the alarm with neighbours who called emergency services. 23After his attack the offender washed the knife and his hands. He wrapped his wife in a rug in the living room. He changed his clothes and called his uncle to ask him to come to look after the children as he had done "something wrong" to his wife. He then went outside cuddled his children before going back inside to wait for the police. 24The police arrived at about 5:20 pm. They found Ms Batirau's body in the rug. Their attempts to revive her were unsuccessful. The offender was arrested, taken to Macquarie Field Police Station, and charged. With the assistance of a Fijian speaking member of the community, he agreed to participate in the electronically recorded interview to which I referred earlier.

Victim impact statements 25As I have said, Ms Batirau was the mother of three children and other members of her family live in Australia. I have had the benefit of hearing two victim impact statements read to the Court; one from her mother, Mrs Levenia Vunakece and the other by her younger brother, Abraham Vunakece. I have no doubt that Ms Batirau was much loved by her family and is sorely missed by them. 26Mrs Vunakece said that her whole world came crumbling down when she learnt of her daughter's death. Notwithstanding her great loss, she sounds exceptionally stoic, and has rallied her spirit for the sake of her grandchildren. She finds it heartbreaking to consider the effect of the murder of their mother on them. 27Ms Batirau's brother had to give up a well-paid mining job in the Northern Territory to come home to assist his mother with caring for his sister's children. He feels his hopes and dreams have been dashed. However, he says that his "spirit and faith have kept him strong, and focused on helping the children heal, be loved and educated with freedom to grow". His carefree, single life has changed as he has assumed the responsibility of caring for his sister's children. 28I was greatly impressed by these family members and very moved by their accounts. 29Of course, the family victims most grievously affected by this murder are the children. Notwithstanding the love, care and support of their extended family, their father has consigned them to a life as orphans. One can only hope that each of them will overcome this bitter legacy. 30As is now generally well-known, it is not permissible for me to extend the sentence otherwise appropriate for this offence and this offender by reference to the impact of the crime on others: R v Previtera (1997) 94 A Crim R 76. Serious crimes are committed against the community at large and it is the community which is entitled to exact retribution and impose punishment: R v Dawes [2004] NSWCCA 363 at [30] per Dunford J.

Subjective circumstances 31As I have already said, the offender was born and raised in a village on the island of Dequa in Fiji. He was aged 47 years at the time of his offending, and now nearly 48 years and 6 months. 32He was the sixth of eight children of a subsistence farmer and his wife. He had a normal, happy childhood and was educated to primary school level. After leaving school he worked on the family farm , and performed some building work in the village. 33I have already recounted how the offender and Ms Batirau met, the family settled in Australia, and he obtained process work. He worked full time in this job and was the sole breadwinner for his family until October 2012 when he was made redundant. 34I have already said that after the offender's redundancy, he and his wife exchanged roles leading to tensions in the relationship. His age and his poor English worked against him finding new employment. I have the impression that he was unable to cope with his financial dependency upon his wife. 35I have had the benefit of reading two psychiatric reports, the contents of which I accept. The first is from Dr Olav Nielssen, dated 1st November 2013, and the second from Dr Richard Furst, dated 8th of January 2014. From them it is clear that the offender does not suffer from any psychiatric or mental illness which may explain his offending. Dr Furst expressed the view, however, that he suffered from "adjustment issues" following his redundancy. He stops short of diagnosing an adjustment disorder. Dr Nielssen referred to the offender's despondency following his retrenchment and his wife's progression into the role as breadwinner and controller of the family finances. 36Apart from the incident of domestic violence I have referred to, the offender has no criminal record. 37He was an occasional user of alcohol and traditional kava but there is no history of alcohol or other substance abuse. There is no suggestion he was in any way intoxicated at the time of the offending. 38The offender appears to have been a conscientious father and provider to his children. 39I again record that from the outset he acknowledged responsibility for killing his wife, co-operated with police, and gave a fairly full account to them when interviewed. I repeat, the offender indicated his intention to plead guilty at the earliest possible opportunity.

Facts in dispute 40The parties are in dispute about the following matters: (a)Is the offending aggravated by the consideration that he acted in response to a belief that his wife was going to report some other crime committed by him to the police? (b)Has he genuinely shown remorse? (c)Is there a degree of provocation, not as a partial defence, but by way of mitigation for the purpose of s 21A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (Sentencing Act)? (d)Is the effect of his early plea diminished by consideration of the strength of the Crown case? (e)Has the offender established special circumstances for the adjustment of the statutory ratio between the non-parole period and the additional term? I think it appropriate to deal with these matters as I refer to the factors relevant to fixing the appropriate sentence in this case. In doing so, I bear in mind that aggravating factors need to be proved by the Crown beyond reasonable doubt, and mitigating factors by the offender on the balance of probabilities.

Factors relevant to sentencing in this case 41I am required to impose a sentence of imprisonment for life on a person who is convicted of murder if I am satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (s.61 Sentencing Act). Bad as this offending is, I am satisfied that it does not fall into that very extreme category, and it was not suggested by the Crown that it did. I can move on from this consideration. 42Even so, it remains important to bear in mind that life imprisonment is the maximum punishment for the crime of murder: s 19A Crimes Act 1900 (NSW). However, I am authorised by law to impose a sentence of imprisonment for murder for a specified term: s 21 Sentencing Act. Murder is also an offence for which Parliament has fixed a standard non-parole period, in this case, of 20 years (Division 1A Sentencing Act). The maximum penalty and standard non-parole period provide important guideposts in fixing the appropriate penalty. 43The nature of the sentencing task is to fix the appropriate sentence for the offence and the offender, having regard to all relevant facts, matters and circumstances. A sentence must fit the offending, having regard to its objective seriousness; that is the offender must be adequately punished for his offending. At the same time, a sentence should not exceed what is proportionate to the crime. 44As is often said, after treason, murder is the most serious offence known to our law. It must always be viewed as an objectively serious crime. However, an assessment of all the circumstances informing the objective seriousness of the particular offending must be made as that evaluation is relevant in assessing the degree of moral culpability involved. 45As the offender pleaded guilty at an early stage, he is legally entitled to a discount on the sentence that would otherwise have been imposed, because of the utilitarian value of his early plea. The value of that plea is somewhat in dispute, as I have already indicated, and I will return to this question. 46It goes without saying, that in any case of murder no penalty other than a long period of imprisonment is appropriate. As this is not a very extreme case of murder, I will impose a sentence for a specified period of years, which will also legally require me to fix a non-parole period. The non-parole period is the minimum period of time that justice requires the offender to serve in prison. Unless I find special circumstances, by law the additional term during which the offender may be eligible for parole must not exceed one-third of the non-parole period. It should not be assumed, however, that an offender is automatically released on the first day on which he is eligible for parole. Again by law, an investigative process is undertaken by the executive branch of government, not the Court, to determine whether a given offender should in fact be released on parole. 47Sentencing is not a purely logical exercise. Its purposes are various, overlapping and competing. They include the protection of society; retribution and denunciation; general and specific deterrence; and reform and rehabilitation: Veen v The Queen (No 2) [1988] HCA 14 164 CLR 465; s3A Crimes (Sentencing Procedure Act) 1999 (NSW). And increasingly, the recognition of the harm done to victims and the community.

Objective seriousness of the offending 48In the present case, it is agreed that the offender repeatedly stabbed Ms Batirau with the intention of killing her. His intention was not simply to inflict serious personal injury. From the number of wounds; the defensive injuries suffered by Ms Batirau; and what the offender told the police about her struggle, Ms Batirau would have been aware of what was happening to her. Doubtless she survived long enough to suffer very significantly. This is not a case of a single fatal blow struck in anger during an argument. This was a sustained attack with a knife upon an unarmed victim, whom the offender was bound to protect. 49The fact that the offence was committed in the presence of the children significantly aggravates the seriousness of the offence (s 21A(2)(ea) Sentencing Act). All offences committed in the presence of children are regarded as aggravated because of the deleterious effect the offence will have on the emotional and moral wellbeing of a child. This effect is worse where, as here, the offender is the child's parent: Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [104]. 50This offence is also aggravated by the consideration that it is a severe example of domestic violence. Violent offences committed in the home or in a domestic relationship, should not be tolerated in our society. I recognise the need for the public to be protected from the commission of such crimes. Violence by men against women in our society calls for particular denunciation. General deterrence of violence against women in our society then must figure in sentencing for this crime. Specific deterrence of the offender is also a factor given the past conviction. But perhaps of slightly lesser significance given other circumstances discussed later. 51The Crown submitted that the offender's actions were in part motivated by a concern that the deceased was going to report his threats of violence with the chair to the police and I have found this played some part in what happened given what he thought he overheard. The Crown submits this is an aggravating feature because it demonstrates a motive to murder in order to conceal another offence. 52To be satisfied of this I would have to be satisfied beyond a reasonable doubt that Mr Lutu murdered his wife in order to conceal his assault upon her. The offender has consistently maintained that the murder arose out of an argument as to groceries and finances, and that he killed his wife as he was afraid she would take the children away from him. From his interview with police immediately after his arrest I am of the view that he was confused and unable to articulate any motive for his actions beyond his fears of losing his children. While he admitted to police that he did not want the deceased to report him to them this was again due to his fears of losing the children. I am not satisfied beyond reasonable doubt that he murdered his wife to conceal threatening her with the chair. Concealment implies some premeditation which is absent here, as the Crown accept. This was a sudden crime of passion. 53Moreover concealment of a lesser crime is inconsistent with his acceptance of responsibility for murder. 54The circumstances I have accepted demonstrate that this is a serious example of murder in a domestic relationship. The offender's moral culpability is high.

Mitigating Factors 55As I have repeatedly explained the offender is entitled to a discount on the sentence that would otherwise be imposed because he pleaded guilty at the first available opportunity; s 21A(3)(k) and s22 Sentencing Act. This is because of the utilitarian value of the plea. Contrary to the Crown's argument in the present case, this utilitarian value is not reduced to take into account the strength of the prosecution case as a factor inducing the plea: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]). Nor is there any component in this discount for remorse. In due course, I will allow the offender the usual discount for a plea entered at the first available opportunity of 25 per cent. 56I turn then to the consideration of remorse. The Crown argued that I should not be satisfied on the balance of probabilities that the offender is remorseful. At best the evidence, such as it is, was said to be equally consistent with him feeling sorry for himself and regretting his present circumstances. I am not persuaded by this argument. It seems to me on the evidence that he accepted responsibility for his crime immediately, and in my view, this is relevant to remorse. He rang his uncle and informed him that he had done something bad to his wife. He cuddled his children, I infer to comfort them and say goodbye. He did not ring the police, but I accept this was because of his bad English. He clearly knew they were going to be called. When they arrived he did not try to hide what had happened, and, in my judgment, co-operated fully with them in the interview process even if he could not fully articulate the number of times he stabbed Ms Batirau. As I have said, I think there were difficulties with communication. The interpreter provided was not a trained, skilled, official interpreter but an ordinary member of the community doing his best to help. 57He expressed remorse to Dr Furst. In my view, it is not to the point that Dr Furst refers to this as "some remorse" at one point in his report. In his conclusions Dr Furst did not so qualify it. The offender said that he was sorry for what he did. He described it as an accident. In using this expression he was not downplaying his responsibility for a dreadful crime. Rather, as I heard during the proceedings on sentence, the word translated from Fijian into English as "accident" does not carry the English meaning of an untoward, unlooked for, or unintended event. It simply means an event that was not planned. I accept this explanation. Moreover, I have found, as the Crown also accept, that the offence was not planned nor premeditated. 58An affidavit by the offender's uncle was read. He said that the offender said to him "uncle, can you come and look after the children, I have accidentally done something to [Ms Batirau]". 59The translation of a letter, and it's Fijian original, from the offender was tendered. In his letter, the offender refers to his wife as his "beloved" and "the mother of his children". He said "I do not want to do to my wife anything such as happened that day". He asked for forgiveness from his children and from all who were present in Court at the time of the proceedings on sentence. He asked the Court to forgive him. 60Of course, forgiveness is beyond the power of the Court. But I took those statements together with the other evidence I have referred to, on the balance of probabilities, as evidence of the genuine expression of remorse on the part of the offender. 61It was argued on behalf of the offender that he was provoked by Ms Baitrau's insult. Although not mentioned to the police, I accept the evidence of the offender's uncle that the offender told him about the insult. I am not persuaded that what is said about the insult is a recent invention. On the balance of probabilities, I accept that it was said and I accept the evidence of the uncle that in Fijian culture, such a statement is very insulting because it offends the parents as well as their offspring. I accept the statement was offensive, but I am not satisfied on the balance of probabilities that it was provocative in the statutory sense. Rather, the explanation for what happened lies with the offender's changed circumstances and the changed dynamic of their relationship. The previous history of some violence cannot be overlooked. I find that the offender was not provoked by the insult. Rather, he seems to have lost a degree of control because he felt threatened, especially in his changed circumstances, by the idea of his wife leaving him and taking the children with her. 62That the offender was generally a person of good character is of less significance in a murder case because of the inherent seriousness of the crime of murder, but it should not be overlooked. Moreover, I am persuaded that the offender is unlikely to re-offend. There is no mental disorder suggesting he might be a risk to the community upon his release. His acceptance of his guilt and his expression of remorse are genuine, as I have said. As one might expect, having regard to his previous character, he has conducted himself well in custody and attends church services each Sunday. I accept the opinion of Dr Furst that he has good prospects of being successfully rehabilitated. 63Before turning then to the imposition of the sentence I consider appropriate, I should say something about the argument advanced on behalf of the offender that I should make a finding of special circumstances. It is argued that I should find special circumstances "because the offender will require re-adapting to society on release and a longer period of supervision would benefit both the offender and the community in light of issues identified in the psychiatrist's report". I am not satisfied that special circumstances have been demonstrated on this ground. I have taken the psychiatrists' views into account in mitigation of the sentence already. Because of the length of the sentence I will impose, the statutory non-parole period is likely to provide an adequately long period of supervision for readjustment or readaptation into society if the offender is released on parole when eligible.

Comparative sentences 64To assist me in my deliberations, counsel have provided me with information about sentences passed in other murder cases in the context of domestic violence. The Crown has provided a schedule summarising the facts and outcomes in some sixteen cases. On behalf of the offender I was provided with a folder containing fifteen previous decisions said to be comparable. I have read these cases and considered the other material provided. I do not think any useful purpose is served by me setting out my impressions of this material. In saying this, I bear in mind that what is required is consistency of principle, not numerical equivalence: Hili v R; Jones v R [2010] HCA 45; 242 CLR 520. The previous decisions establish a range of sentences actually imposed, but do not establish the correctness of the range: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303] - [305]. Nonetheless, I have borne the decisions in mind and derived some guidance from them.

Sentence imposed 65Bearing in mind all the facts, matters and circumstances to which I have referred and deriving some guidance from the cases to which counsel have taken me, but for the guilty plea, I would have imposed a sentence of 25 years on the offender for the murder of Ms Batirau. I am required by law to allow a discount of 25%, and accordingly the term of imprisonment I will impose is one of 18 years and nine months. As there are no special circumstances, the non-parole follows as a matter of law as 14 years and 23 days, which for administrative convenience, and to avoid an artificial appearance of precision, I will round down to 14 years. 66As the offender has been in custody since his arrest on 20th January 2013, the sentence I impose will commence on that date. 67Nacanieli Lutu, on your plea of guilty, I convict you of the murder of Salaseini Batirau. I sentence you to a term of imprisonment having a non-parole period of 14 years, commencing on 20th January 2013 and expiring on 19th January 2027 with an additional term of 4 years and 9 months commencing on 20th January 2027 and expiring on 19th October 2031. 68The earliest date on which you will be eligible for release on parole is 20th January 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: 10 April 2014