R v Matavesi

Agreed facts

1. There are agreed facts before the Court. Both the victim and the offender lived in a unit complex in Woonona. At around 6pm on the 24th the victim was in her unit and engaged in an SMS conversation with the offender. The victim had recently been away and she had a present for the offender. They met up and the present was exchanged.
2. The offender went back to her unit to get something but did not return as her victim expected. The victim then went to the offender's unit. There she observed that the offender has passed out. She shook the offender's shoulder and checked her pulse. The offender woke and punched the victim between her eyes. The victim's nose started to bleed. She went back to her unit followed by the offender. As the offender entered the victim's unit she locked the screen door behind her. She then started accusing the victim of certain things which had, as far as I am aware, no factual foundation.
3. Matavesi kicked, punched and threatened to kill the victim. She demanded that the victim transfer $50,000 into her account. The victim moved away from her but was hit a number of times to the face; she fell. Her hair was grabbed and clumps of hair were removed. The offender went through her kitchen drawers and got some sticky tape and told the victim to tape her mouth. The offender then took the tape and wrapped it around the victim's throat. Despite the victim's efforts to pull at the tape so she could breathe the offender kept wrapping it tighter. The offender continued to pull the tape tighter, choking the victim. The offender continued to threaten to kill her unless she signed her money over. The victim's lip and tongue were bleeding.
4. The offender then took a hammer and hit the victim on the legs and head. The victim was trying to scream but the tape was across her mouth. She blacked out for a while. She came to and noticed that the hammer was being used to smash her property.
5. While the victim was lying on the floor in obvious pain the offender took hold of a lamp and used the cord to wrap it around her victim's throat. Again, the victim had difficulty breathing. Continued demands for money were made. Another lamp was used as a weapon to hit her and then the cord at the back of the lamp was wrapped around her throat. Again, the victim blacked out; waking to hear threats, "If you tell the police I'm going to fucking kill you".
6. The offender then went to the balcony door which was deadlocked. The victim then managed to remove the tape and scream for help. She was punched again.
7. The victim heard a noise. The offender looked out saw that the police had arrived. She made more threats opened the door and escaped. The victim got up from the floor and walked toward the door, working the tape off her hands.
8. Police had attended after a Triple Zero call was made by a neighbour. Police entered the unit, noted the broken furniture and the blood. The victim was taken to hospital. She was treated for abrasions to her neck and bruising to her face, loose teeth, she had cervical and thoracic back pain and cuts. Forensic examination confirmed this history.
9. The police found the offender in her unit. Her clothing and shoes were covered in blood. She declined to be interviewed but told police she did not start drinking until she went into the unit, but she also said had consumed a bottle of port beforehand.
10. It is said and accepted that the entire incident lasted approximately three hours. There were a series of violent acts. The victim was helpless in her own home and was effectively detained for that period. What occurred was accompanied by demands for the transfer of money. It may be that Matavesi was aware that the victim had received some money from an inheritance, but the demands had no real or rational basis. In fact, nothing that occurred had any rational basis.

Seriousness

1. So far as the choking is concerned; the maximum penalty reflects the fact that any choking offence is by its nature serious, as it carries with it the real risk of asphyxiation to the point of death, or serious consequential damage short of death. Here, there were three incidents of choking involving the tape and two cords were used. At times the victim lost consciousness.
2. As to the detaining; the reason given for the assault, the use of the tape, the multiple blows that were inflicted, some with a hammer, that actual bodily harm was caused, and, and extent of the bruising, cuts and other injuries, all speak to how serious this matter was.
3. The desire for monetary gain may have been illusory, but a real threat was made. The other threats that accompanied the detention carried implied further violence beyond that which was already inflicted and were designed to intimidate, coerce and frighten. The use an offensive weapon offence involved a kitchen knife. The victim would not in those circumstances have known whether it was to be used on her. Her level of apprehension would have been quite severe and significant.
4. I have no details about the property damage but it is accepted that personal items were involved. The damage was gratuitous, and the loss of sentimental items often goes beyond their monetary or dollar value, their loss can cause significant and continuing distress as one later comes to recall what has been taken from them.

Victim Impact Statement

1. A Victim Impact Statement was read to me this morning. I will consider it. It indicates, tragically, what one would expect from being the victim of the series of events that I have just described. The victim tells me, and I accept, her mental and physical health has been impacted, and that impact continues. She has sought medical assistance and some mental health assistance at Wollongong Hospital. She realises that she should continue seeing the Partners in Recovery (PIR) Mental Health Service but she still feels too depressed and does not want to talk about what has happened to her because it brings out the fear and distrust that this event caused her.
2. She has lost the home she loved, in the street and area that she loved and was familiar with. She has started drinking and she has still difficulty sleeping and eating. She has lot many of the things that made her life enjoyable. She says "I feel that Amanda not only broke my possessions, she also broke me."

Other relevant factors

1. The fact that she was on an Intensive Correction Order aggravates the sentence that I must impose. The offender has a criminal record which goes back to the Children's Court. There are offences of violence including possession of weapons. In all but one of the matters non-full time custodial sentences were imposed. The offender has been regularly subject to conditional supervision directed at dealing with long standing psychological health and drug and alcohol issues.
2. Some relevant prior examples of her offending were tendered, and although she is not to be sentenced for her past crimes, a judge can and should take into account criminal history in determining the appropriate sentence for the matters before them. Those matters cannot lead to a sentence that is disproportionate to the gravity of the crimes for sentence. Her history indicates that there has been some continuing disobedience for the law. It also allows for an assessment of, as the Crown submit, of whether she presents a continuing danger to the community. These are all matters that relevantly must be factored into my ultimate judgment.
3. While in custody Matavesi has been subject to gaol discipline punishments. The effect of my sentence today will not allow for her automatic release to the community. Release to parole must be earned. The State Parole Authority cannot make a parole order directing release unless it is satisfied that it is in the interests of the safety of the community to do so. Matavesi has to understand that her behaviour, attitude and progress towards rehabilitation while in custody would be a significant consideration when it comes to the State Parole Authority determining when she is to be released.
4. All of the evidence before me indicates that she was significantly intoxicated either with alcohol or other drugs at the time of the offending. It would appear that not only was she drinking alcohol to excess, she was also taking methylamphetamine. She has a long history of drug and alcohol abuse. At times she has been able to benefit from parole supervision and attendance at rehabilitation centres. Her son committed suicide some months before this event. I do not underestimate the impact of her son's death upon her but it needs to be stated and made clear that the use of intoxicants, illicit drugs or alcohol cannot excuse any offending, let alone offending such as this.

COVID-19

1. Matavesi will be sentenced during the present pandemic. I understand from my regular review of Corrective Services memoranda that protective quarantine measures and some social distancing measures are in place in our gaols. To date New South Wales Corrective Services have been successful in preventing COVID-19 entering the gaol. I cannot predict what will happen to this offender, but lack of capacity for face to face visits and a reduced capacity to engage in programs has to be taken into account. The heightened anxiety and concerns about the pandemic are all relevant, but they are also relevant to every member of our community. If COVID-19 ever enters the gaol some prisoners may be given early release. There is no reason why this offender would not otherwise qualify for that program if appropriate accommodation can be made available to her. All matters would have to be factored.

Subjective case

1. So far as her subjective case is concerned I have a letter from the offender: exhibit 3. In it she says "I would like to offer my deepest regret for the circumstances which have brought me in front of you today", and how she has reflected on the poor choices she has made and the shame she feels for not being a good example to her children. She tells me a bit about her background, to which I will refer later, and she promises that she will seek support in counselling for drug and alcohol addiction, to become a responsible mother, an example to her children.
2. The promises that she makes are noble ones and will have to be fulfilled if she is to be released to parole and if she is not to reoffend. Given her history and background I have to be guarded because I am sure she has made those promises to herself and to courts in the past, and she has obviously not kept to those promises. As Ms Kerr, solicitor for the Director, points out, nothing in that letter shows any insight into the harm that she inflicted on the victim. She is not to be punished for that; it may be that she as she has shown over the past so little concern for herself that she is not yet capable of having empathy for her victim.
3. The Justice Health reports confirm her history. The reports also confirm the evidence I have heard in other matters of the difficulty in assessing mental health and psychological services while in gaol. She has had a test at Westmead for a heart condition. I am not a cardiologist and I have no familiarity with the preliminary reports, but I note that generally Justice Health will, to the best of their ability, provide medical assistance to those who need it. While she does not have the same access to medical treatment that a free citizen would have, Justice Health are under an obligation to provide all care to her. Obviously anyone with a heart condition would be concerned given the present pandemic; a matter I take into account.
4. The Sentence Assessment Report, which was included in the Crown bundle, also provides some background, but most of it came from Ms Grujoska, a psychologist, whose expert report is before me: exhibit 1. While a judge is entitled to be sceptical of opinions unsupported by factual detail, I see no reason to doubt the opinions of Ms Grujoska, which appear well founded. The focus of her report was on subjective matters, and to the extent that the history went to the night in question I disregard it.
5. The history sets out how the offender suffered trauma, including sexual abuse and exposure to violence as a young child. She is still traumatised by what occurred to her as a child and as a young adult. That material allows for some understanding of the woman for sentence today.
6. Born in 1974, she and her siblings were put in the care of Family and Community Services (FACS) due to their neglect. She reports a history of being starved as a child by an alcoholic mother and a physically abusive stepfather. She reports violence including sexual violence being committed against her and having considerable difficulties with schooling and negative feelings as a child. She has had significant learning difficulties. She still struggles with literacy. She still suffers the psychological effects of that background, and it would appear from all the material before me a cycle of deprivation has developed. She has been herself the victim of domestic violence. The cycle was continued when her children were taken by FACS.
7. In 2019 one of her son's suicided. It would appear that until she obtained the accommodation in Woonona, homelessness and violence had been normalised. Having finally obtained stable accommodation, as a consequence of her custody she has now lost it.
8. The effects of profound deprivation, which are set out in the report and which continued almost up until the commission of this offence, do not diminish over time and must be given full weight. That background operates to mitigate the sentences that must be indicated and imposed. I am prepared to accept that her moral culpability is likely to be less than an offender whose formative years have not been marred in any way.
9. Reference was made in the reports to mental health conditions including post-traumatic stress disorder and depression. Where matters which are commonly referred to by lawyers as Bugmy factors operate it is not unusual to see them operating in tandem and be intermingled with mental health and psychological factors, which also go to questions of moral culpability: see Bugmy v The Queen (2013) 249 CLR 571; DPP v De La Rosa [2010] NSWCCA 155. A judge does not need to parse or separate out such matters where both are supported by material before the Court. All relevant matters going to moral culpability need to be synthesised by the judge and given effect to.
10. I accept that the offender's background has left its mark and compromised her capacity to mature and learn from experience. That is classically what occurs when a cycle of deprivation in families is repeated over generations. It does mitigate the sentence. But matters such as this can impact on sentences in different ways. The offender's recourse to violence when frustrated and apparent inability to control her violent responses increase the importance of a sentence which is structured to protect the community from the offender. I also have to weigh the countervailing factor - giving appropriate weight to her reduced moral culpability. I must also consider the difficulties that she will face because of her mental health and deprived background, and coping with custody and progressing to rehabilitation.
11. Her drug and alcohol abuse has been longstanding; it goes back to when she was a child. As I said earlier, it does not excuse the offending but it can help explain the impulsivity of what occurred. Her history of drug and alcohol abuse provides some assistance in her subjective case. Her efforts to overcome her problems in the past and her promise to do what she can to overcome it in the future are relevant.

Submissions

1. I am assisted by the submissions, both oral and written, by Ms Kerr and Mr Fraser, Public Defender who appears for the offender. I sought to address them in these remarks.
2. It is acknowledged by Mr Fraser how serious these offences were. It is submitted that the structure of the sentence can properly reflect the punishment that is required, but also allow for the offender to have an opportunity of proving herself in the community.
3. Ms Kerr properly draws attention to the seriousness of what occurred, the length of time over which it occurred, where it occurred and the harm that was done. She draws my attention to the potential danger posed by this offender on release and the need for a protective sentence; protective of the community, protective of others.
4. I am required to indicate an appropriate sentence for each offence and to structure an overall sentence and aggregate sentence that is just and appropriate to the totality of the offender's crimes. The various charges seek to encompass all of her criminal conduct this evening. That meant that more than one offence had to be charged and requires punishment be extracted for each of those offences. But, they each form part of a single episode of criminality and have many common factors and common elements such that the sentence for one can incorporate the sentence for the criminality of the other. An example being the property offence itself where the weapon used on the victim was also used to smash the property. Other examples are that the overall detention for the three hours enabled each of the offences to occur. The aggravating factor that the offence occurred in the home is also common to them all.
5. I should not punish an offender where elements overlap, I cannot punish an offender where elements overlap and I cannot double count matters that go to increase the objective seriousness of the offence. Similarly aggravating and mitigating factors apply to each of the offences.

Starting date

1. Matavesi was arrested on 25 October 2019. The Intensive Correction Order was breached because of the commission of this offence. The report seems to indicate that the supervision and assistance process meant to be started by the Intensive Correction Order had really not taken effect. I have increased the sentence, as I must, because of the aggravating factor that it was committed while in breach of a promise to be of good behaviour inherent in the Intensive Correction Order. In all the circumstances there should be some independent punishment for that breach, but I note that Intensive Correction Orders can be regularly revisited and had she not been bail refused in this matter, may have been reimposed. I propose to start this sentence from 25 November 2019 to reflect those factors.

Special circumstances

1. The evidence relating to the offender's need for psychological treatment and assistance in dealing with her addictions in the community, need to help her to adjust to normal community life all provide a basis for a finding of special circumstances. I am also mindful of the need that the minimum period that she must be in prison must properly reflect the gravity of her offences and the other purposes of sentencing; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704. Matavesi has had the benefit in the past from programs and parole supervision. It is essential that she again be given the opportunity to heal from her own past abuse, if the cycle of violence is to be broken.
2. Returning briefly to Ms Grujoska's report, she recommends that Matavesi participate in face-to-face psychological intervention tailored to individuals with trauma. She would benefit from Cognitive Behaviour Therapy (CBT) which is safe and effective intervention for acute chronic post‑traumatic stress disorder. If she can, she should access a psychologist who offers Eye Movement Desensitisation Reprocessing (EMDR). She will need referral to a psychologist by her local doctor on release and a Mental Health Care Plan will need to be put in place when she is released. She will need to have ongoing substance abuse and addiction monitoring assistance which can and should be organised in the local community. She has in the past had access to victim counselling services and that should continue.
3. In custody she needs to engage in behaviour programs such as Real Understanding of Self-Help (RUSH) and it is recommended that if at all possible she attend the Intensive Drug Alcohol Treatment program for women at Dillwynia. It is also recommended that given her history of being a victim of domestic violence that she accesses the Out of Dark program which is available to women in her situation.

Synthesis

1. A cycle of violence has been repeated by this offending. I take into account Matavesi's childhood history and I take into account the traumatic experiences she has suffered all of her life. I take into account, to the extent I can, her drug and alcohol use. It informs what needs to be done in custody and on release.
2. Here, given this was effectively an unprovoked spontaneous assault, general deterrence would have little rational claim upon the exercise of my sentencing discretion. But personal deterrence is relevant. That is, the sentence has to signal to the offender how serious the crimes she committed were and the impact upon her victim. She should reflect every day upon that, because if any offences are repeated, if offences of violence are repeated, judges will treat her as a serious recidivist, someone who cannot be trusted in the community; resulting in longer and longer terms of imprisonment.
3. In sentences for matters such as this the Court has to consider retribution and appropriate punishment. Ms Grujoska concluded in her report that further custody is likely to exacerbate Matavesi's psychological symptoms. Further custody will limit her access to support networks, networks she requires to deal with her lifelong trauma and its impacts. Gaol is not going to make her better and on all the material before me is likely to make her worse. It appears her anger at herself was taken out on her victim. That anger is unlikely to be reduced by a lengthy term of imprisonment. But gaols are not remedial institutions, although they do their best. They are designed for punishment and removal of offenders from the community with the ultimate aim being community protection.
4. Any period of imprisonment, particularly minimum term, is based on a proper assessment of the objective seriousness of the crime and the purposes of sentencing that require proportionality between the harm caused and the punishment inflicted. The principle operates to help avoid excessive sentences and too lenient sentences. It is set out in the requirement that there be adequate punishment: s 3A(a) Crimes (Sentencing Procedure) Act 1999.
5. Accordingly, while mitigating factors will be given appropriate weight they cannot lead to the imposition of a penalty which is disproportionate to the gravity of the matters for sentence. Sentences should operate to; vindicate the dignity of victims of violence, to express the community's disapproval of the offending and provide some protection to the vulnerable against repetition of such offending: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600. A Court has to synthesise all those competing factors and then reduce the synthesis to a period of time in custody and the community.

Orders

1. Taking into account all the matters that have been put before me and the early pleas of guilty I need to indicate an individual sentence for each matter. The indicated sentences reflect the 25% reduction for the utilitarian value of the plea of guilty.
2. For the choke with intent to commit a serious indictable offence occasioning actual bodily harm, s 37(2) Crimes Act 1900, I indicate a sentence of three years and nine months.
3. For the aggravated detention with intent, s 86(2)(b) Crimes Act, I indicate a sentence of three years and four months.
4. For the use an offensive weapon with intent to commit an indictable offence, the weapon being a knife, s 33B(1)(a) Crimes Act I indicate a sentence of one year and ten months
5. For the intentionally damage property: s 195(1)(a) Crimes Act, I indicate a sentence of nine months' imprisonment.
6. I have already alluded to the principle of totality that there will be an aggregate sentence in this matter of five years and three months. There will be a non-parole period of three years which will commence on 25 November 2019 making you eligible for consideration for release to parole on 24 November 2022. There will be a parole period of two years and three months which will commence on 25 November 22 and expire on my calculation on 24 February 2025.
7. I note the backup offences are withdrawn

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: 17 September 2020