R v Nikua, Nikua, Orika, Sio, Torotoro, and Tuahuru

District Court of NSW|2020-12-08

Indicative sentences: Seq 5 Affray - 1 year 10 months Seq 4 Wounding - 2 years 10 months with NPP 17 months Catchwords: Crime - Sentence - Reckless wounding in company - Affray Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Aouli v The Queen [2012] NSWCCA 104 BP v The Queen [2010] NSWCCA 159 Bugmy v The Queen [2013] 249 CLR 571 Category: Sentence Parties: Joseph NIKUA Ronald Gregory NIKUA Jeramiah ORIKA Trevor Lokeni SIO Reuera TOROTORO Jaydon Te Ruakau TUAHURU Representation: Mr C Triscari for Crown Mr Maraoui for J Nikua Ms S Hall for R Nikua Mr E James for Tuahuru Mr M Doyle for Orika Mr D Shestowski for Sio Mr Abbas for Torotoro File Number(s): 19/275621, 19/309337, 19/236051, 19/311327, 19/118732, 19/227999, 19/228588, 19/217891 Publication restriction: None

SENTENCE

Each of the six offenders are to be sentenced in relation to offences committed on 6 February 2019. In addition, the offenders Joseph Nikua and Ronald Nikua are each to be sentenced for an offence committed on 10 July 2019.
The offences of 6 February 2019 to which all six offenders have pleaded guilty are as follows:
Firstly, an offence of reckless wounding in company for which the maximum penalty is ten years' imprisonment and a standard non-parole period of four years is specified.

FACTS

I commence with a consideration of the facts of the offences of 6 February 2019, to which all six offenders have pleaded guilty.
The offences of 6 February 2019 involved a 28-year-old victim named Mark Koziuk who lived in Glenwood. At about 8.30pm on 6 February 2019, Mr Koziuk went riding on his bicycle around the neighbourhood. About the same time the six offenders were drinking alcohol together on some stairs at a railway underpass at Marayong Railway Station. Unfortunately for Mr Koziuk his bicycle ride took him to the area where the offenders were drinking and he had a short conversation with one of the offenders.
According to the agreed facts, this conversation continued for a few minutes but then, for some reason which remains unknown, things got a little heated and all of the offenders surrounded and started pushing Mr Koziuk. At that point, at least one of the offenders started punching Mr Koziuk to the face. The offenders, Tuahuru and Torotoro agree that during this initial phase of the attack, they also struck the victim a few times.
After this, Mr Orika pinned the victim to the ground on the stairs while two others punched him to the face, with another offender punching him from behind. The offender Mr Orika also punched the victim a few times while he was on the ground.
After this, the victim, who was still surrounded, was thrown around and punched numerous times then dragged down some stairs where one of the offenders stood over him, pinning him to the ground while a number of the other offenders stood behind, effectively backing up the first offender. About that time Trevor Sio stood over the victim holding a piece of broken bottle towards the victim's neck and said, "I'll cut you. After I cut you I'll throw you off the bridge." Mr Sio was, whilst still holding the broken bottle, holding the victim down by his neck making it difficult for him to breathe. The victim attempted to defend himself by taking hold of the bottle neck and trying to stop Sio from cutting his face. The offenders again, at this point, surrounded the victim while he was on the ground and Mr Sio and a few of the other offenders punched and kicked him to various parts of his body. Mr Sio also stomped on the victim's face multiple times while the victim attempted to protect himself.
At some point the victim managed to push away from the offenders but they kept coming towards him, punching and throwing him to the ground. Eventually he managed to get away to the stairs at the bottom of the platform where he wrestled with one of the offenders but was still surrounded by a number of them. One of the offenders, who was holding a broken piece of glass, pinned the victim down on the stairs saying, "I'll cut you," and then attempted to cut the victim's face with the piece of glass. In the ensuing struggle, the victim received cuts to his right arm and right cheek. This is the act which constitutes the offence of reckless wounding for which each of the offenders is to be sentenced.
Eventually the victim got away and onto Marayong Railway Station where he wandered around for a while in a state of confusion. He eventually got home around midnight where his sister bandaged his cut arm and took him to hospital.
As a result of the assault, the victim sustained serious injuries and required eight stitches to his right arm for the wound inflicted by the broken glass. The additional wound to his cheek was treated with a form of medical glue which was covered with a Steristrip. The victim's face was severely bruised and swollen and he had multiple cuts to his knees and hands. In addition he suffered bruising all over his torso and back and was required to use strong pain medication.
After police were informed about the incident a crime scene was established around the underpass area. DNA from a total of nine males was located. The DNA of the offender Mr Orika was detected on a number of beer bottles and his fingerprints were also found on a stairway railing and in the victim's blood which was found on a wall.
Mr Orika was arrested on 16 April 2019 and participated in an interview with the police. In his interview he agreed he had been at the scene when the victim was "getting jumped," but claimed he did not participate in any offence but had tried to assist the victim. He refused, however, to tell police who he had been with at the time and claimed that he had not informed police about the incident because he was on parole and also was, "not a dog."
I turn then to consider the facts of the further offence of 10 July 2019 which concerns the offenders Joseph and Ronald Nikua only. The facts of this offence are also agreed and in summary are as follows:
In July 2019 New South Wales Police initiated a strike force to investigate ongoing acts of violence between two rival gangs known as the Inner West Brotherhood Gang and the Greater West Brotherhood Gang. Joseph and Ronald Nikua were members of the Inner West Gang.
On 10 July 2019 a member of the Inner West Gang was confronted at Guildford Railway Station by members of the Greater West Gang, including a man named Rekindle Tautalanga. The member of the Inner West Gang was chased through the streets and threatened with violence. The incident apparently was "live streamed" on social media. That same evening, the offender, Ronald Nikua attended the Guildford Hotel with a number of other males who have been identified as members of the Inner West Gang. The offender, Ronald Nikua and these other males were seen to leave the hotel at about 10pm in a convoy of vehicles. At the time both Ronald and Joseph Nikua were captured on CCTV which showed them to be wearing distinctive clothing that assisted police in later identifying them and their involvement in the subsequent affray at Mount Druitt.
At about 11.30pm that night police received reports of a large brawl at the Village Hotel in Mount Druitt with males fighting in the street with pool cues and bottles. By the time police arrived, the males had departed but a number of knives and bottles were located on the ground.
At about 12.15am the next morning, the offender Joseph Nikua presented to Westmead Hospital with multiple stab wounds to the right side of his neck, head and upper back. About ten minutes later his brother, James Nikua, also attended the hospital and was found to have a fractured knee and a stab wound to the chest. Both Joseph and James have been identified as members of the Inner West Gang who had been drinking at the Guildford Hotel along with the offender Ronald Nikua the previous evening. James Nikua told staff that he had been hit by a car and stabbed to the chest while in the Mount Druitt area.
Police attended the Village Hotel and obtained CCTV material. Police also found a golfclub, the shaft of which was snapped, with the head of the club covered in blood, as well as a quantity of blood on the roadway and a knife, a sheath to another knife, and part of a motor vehicle that had been damaged during the incident at the hotel.
It is an agreed fact that the CCTV material from the Village Hotel shows the following:
Firstly, at about 11.30pm a convoy of cars drives past the hotel and enters the carpark, after which the occupants get out of the vehicles, some of them carrying weapons. At the time, Ronald Nikua was carrying a long, slim metal pole. At the same time, a large number of males believed to be members of the Greater West Gang were at the front of the hotel and were also armed with weapons including knives.
Shortly after, two males by the names of Hama Mapalangi and Mal Seve, who had earlier been depicted on CCTV from the Guildford Hotel, entered the outdoor drinking area of the hotel, apparently looking for someone and then ran out of the hotel.
At about the same time, Joseph Nikua entered the hotel with another male but then ran and joined in the affray that was occurring outside. Witnesses at the hotel who were observing the fighting taking place in the street locked the gate and contacted police. One of the males, Rekindle Tautalanga, a member of the Greater West Gang, jumped a boundary gate and stole two pool cues which were then used in the affray outside.
The CCTV footage depicted about 15 to 20 males fighting in the carpark during which Joseph Nikua fell to the ground, after which approximately five males proceeded to stomp and punch him on the ground and strike him with unidentified weapons.
At that time James Nikua went to assist Joseph and was also struck and fell to the ground, after which he regained his feet only to be hit by a motor vehicle which entered the carpark at speed and swerved so as to hit him. Each of the offenders, Ronald and Joseph Nikua accept that they participated as members of a joint criminal enterprise in the affray at the Village Hotel.
On 3 October 2019 Joseph Nikua presented himself at Auburn Police Station where he was arrested and the next day Ronald Nikua was arrested at Merrylands Police station.

OBJECTIVE SERIOUSNESS

I will turn to consider the objective seriousness in relation to each of the offences before the Court.
All of the offences before the Court must be regarded as objectively serious by reason firstly of the significant maximum penalties that apply and in the case of the reckless wounding offence, the standard non-parole period.
It is important, however, that I make an assessment of the objective seriousness of these particular examples of the admitted offences. An important part of that process is that I assess, to the extent that the evidence permits, the role that each offender played in the relevant offences.
I commence with a consideration of the offences committed on 6 February 2019 involving the affray and reckless wounding of Mr Koziuk at Marayong Railway Station. Making an assessment of the objective seriousness of those offences and of the culpability of each offender is difficult in a case like this where the incident involving both the affray and the reckless wounding extended over a period of time and involved multiple participants and in the case of the affray, multiple acts of violence.
As to the objective seriousness of the wounding offence, this occurred in what the Crown described as the fourth phase of the attack on Mr Koziuk. The Crown submitted, and I agree, that it is not possible to determine on the agreed facts which of the offenders inflicted the wound. However, it is clear from the agreed facts for all offenders that, at that point, each of them were participants in a protracted assault on the victim which ultimately also involved the infliction of wounds to his right arm and cheek.
There is no dispute that all of the offenders are equally culpable for those acts. The wounding is aggravated in each case because it involved the use of a weapon. While the wounding was accompanied by other injuries, the wounding itself which required stitches to the arm and some gluing of the cheek wound was not in the more serious category of wounding offences.
In my assessment, the objective seriousness of the reckless wounding offence lies slightly below the mid-range.
In relation to the objective seriousness of the affray offence committed that same day, again it is not possible to dissect with great accuracy the responsibility of each individual offender, in the combination of acts which make up this offence.
The agreed facts for Mr Orika accept that it was he who pinned the victim initially to the stairs while others punched him and that Orika himself also punched the victim a few times at that point.
The agreed facts nominate Mr Sio as having threatened to cut the victim with a broken bottle and "throw him off the bridge." There is also the agreed fact in Sio's case that he "stomped on the victim's face multiple times." However, this specific admission must be looked at in the light that, at that point in the affray, multiple people were kicking and punching the victim all over his body.
As section 93C(ii) of the Crimes Act 1900 provides, "It is the conduct of all the participants in an affray which must be considered." In my view, the separately identified acts of Orika in initially pinning the victim to the stairs and then punching him does distinguish the objective seriousness of his offending to some degree from the other offenders. Furthermore, the actions of Mr Sio in threatening to cut the victim and throw him off the bridge and then in stomping on his face increases the objective seriousness of his criminality in the affray as compared with the other offenders.
In Aouli v The Queen [2012] NSWCCA 104, the New South Wales Court of Criminal Appeal quoted with approval the comments of the sentencing judge, R A Hulme J who said: "Members of the community have an entitlement to feel safe and secure in public places. The selfish and mindless arrogance of those who perpetuate extreme levels of violence for their own ends with complete disregard for others, warrants the strongest condemnation. This includes those who are prepared to associate themselves with such violence even though not directly participating."
In the instant case, that is the case before me, the affray certainly was not momentary and extended to various locations in what was a very public area. The level of violence was considerable, and it was apparently unprovoked. It involved serious threats and significant injuries to a person and appears to have ceased only when Mr Koziuk managed to escape.
Having regard to all of these matters I assess the objective seriousness of the affray offence by Mr Sio as being well into the mid-range. I assess the objective seriousness of Mr Orika's involvement in the affray as being just below that of Mr Sio. In relation to the remaining offenders, I assess their offences as being just into the mid-range.
Turning to the objective seriousness of the affray at the Village Hotel at Mount Druitt on 10 July 2019, the facts of this incident indicate that it was a relatively serious form of affray and I agree with the assessment by His Honour Judge Hanley SC when sentencing Mr Seve and Mr Tautalanga that it is slightly below the mid-range. I come to that view having regard to the following matters:
Firstly, the number of participants.
Secondly, because the incident was not a spontaneous event but involved some level of pre-planning especially by members of the Inner West Gang who attended the hotel apparently looking for a fight.
Thirdly, that it involved many persons being armed, including Ronald Nikua who came armed with a metal pole and in some instances it clearly involved the actual use of weapons.
Fourthly, because it involved significant injuries to various people as is indicated by the finding of blood stained weapons at the scene and the injuries noted at hospital when Joseph and James Nikua attended for treatment. This was no doubt a very disturbing and frightening experience for any of those members of the public who might have been in the vicinity. As I have said, I have assessed the objective seriousness of the offending by both Joseph and Ronald Nikua as slightly below the mid-range.

SUBJECTIVE MATTERS

I turn to consider the subjective or personal circumstances of each of the offenders.

Joseph Nikua

The subjective case for Joseph Nikua has been placed before the Court in part by a psychological report. Joseph's upbringing involved a lot of moving around, and when he was 12 the family returned to Tonga where they stayed for about two years before returning to Australia when he was about 14. He then apparently lived with an aunt in Canberra. He left school at age 15 and worked as a removalist and had some involvement with the Criminal Justice system from this time when he was apparently hanging around with antisocial peers and abusing alcohol.
He and his wife married when he was only 19 and they had four children, although one of them, a daughter, passed away at a very young age in about 2016. The offender told the psychologist that it was after his daughter's death that he started having problems and began re-engaging with persons of bad influence.
When questioned by the psychologist about the first two offences for which he must be sentenced, the offender claimed that he had been heavily affected by alcohol and had tried to break up a fight after the men he was drinking with became involved and things were getting out of hand. He also claimed that the victim had in fact hit him and that it was in response to this that he hit the victim.
This version is contrary to the Agreed Statement of Facts and is probably an example of what the psychologist described as a tendency in this offender to over report matters that place him in a good light and under report matters that do not. I do not accept the offender's claim that he acted only to "break up a fight," which is, of course, contrary to the agreed facts.
On the positive side, the psychologist notes that Joseph Nikua's intention on release is to change his peer group, return to work and be a good husband and father to his children. In terms of future risk the psychologist notes that the offender still requires intervention, not only to assist him in dealing with the death of his daughter, but also to provide a concrete plan for his future that avoids the kind of life that has brought him before the Court today.
Another factor of some significance in his case is his relative youth. He was 22 years old at the time of the Marayong incident and 23 at the time of the Village Hotel affray.
It was argued on his behalf under section 21A(3)(j) that I should find that the offender was "not fully aware of the consequences of his actions," because of his age. In my view, neither the offender's age nor the evidence in his subjective case permits me to make such a finding. Although he was a young man, he was, after all, married and had fathered four children. In my view, his criminal actions are likely the product of his abuse of drugs and/or alcohol and the gang mentality by which he was affected at that time. Nonetheless, as Hodgson said in BP v The Queen [2010] NSWCCA 159, "Emotional maturity and impulse control develops progressively during adolescence and early adulthood and may not be fully developed until the early to mid-20s." This observation is of real relevance in the case of Joseph Nikua given the psychologist's conclusions that he has high levels of anger, a tendency to be impulsive, to quickly flare up and lash out and is highly focussed on the present. In my opinion, these are tendencies which confirm that he remains emotionally immature and was likely even more so at the time of the offences.
It seems to me, therefore, that the relative youth of this offender is a matter to which I should give some weight in ameliorating the sentence that I would otherwise impose so as to give slightly more weight to the importance of rehabilitation.
The Sentencing Assessment Report placed before the Court indicates that the offender expressed some remorse for his offending but displayed no empathy towards his victims and placed the blame for his offences largely on his abuse of drugs and alcohol. Of course, the use of alcohol and/or drugs may provide some explanation for the offences in the case of all of the offenders but of course, as is well accepted by the Courts, it provides no excuse, and provides no mitigation of the seriousness of any of the offences.
In Mr Joseph Nikua's case, on balance, I find that there is some but limited remorse. It is positive that he has received good reports on his work in the engineering section at Macquarie Correctional Centre. He has the continued support of his wife and family who are positive factors in his life. He also has the benefit of being re-employed in the construction industry once released. The Sentencing Assessment Report says that he is a medium risk of re-offending. In my view, his risk of re-offending will depend on whether he can avoid using drugs and abusing alcohol. It will also be important that he avoid contact with previous associates who engage in drug and alcohol abuse and gang activity.
Leaving aside Children's Court matters, his recent criminal offending essentially involves driving related incidents. Having regard to all of the evidence, I assess his prospects of rehabilitation and of staying out of trouble to be reasonable, although highly dependent on whether he can avoid drugs, excessive alcohol use and negative influences.
In his case it was also submitted that I should take into account the injuries suffered by him in the course of the affray that occurred at the Mount Druitt Hotel. I have taken this into account as part of the general background, however, no evidence was placed before me to indicate that those injuries were such that his period in custody will be made any more difficult and so, I take it into account only in relation to the general background of matters.

Ronald Nikua

I turn to consider the subjective matters concerning the offender Mr Ronald Nikua. Ronald is now 22 years old and was 20 at the time of the offences. His background has been placed before the Court partly by a psychological report. He also gave evidence in which he affirmed the contents of that report. He is married and has two young daughters who are now about 2 and 3 years old. He reported having been bullied at school as a child and his early family life involved significant violence in the form of beatings at the hands of his father who at that time had an alcohol problem. That relationship is now much better, and the offender describes his father now as a changed man.
He left school in year 11 and has since then worked regularly until his current incarceration. In his late teenage years he fell into a group of negative peer influences and began to drink alcohol at excessive levels which was a form of trying to fit in with his peer group. These habits continued up until his current offences, and he describes significant alcohol effects on each occasion although he has only vague memories of the Marayong incident.
The psychologist diagnosed him as having severe alcohol use disorder at the time of the offences. The Crown accepted that the offender's background attracts the principles in Bugmy v The Queen [2013] 249 CLR 571. In that well-known case the High Court of Australia noted that the effects of profound deprivation and exposure to alcohol abuse do not diminish over time and may compromise a person's capacity to mature and learn from experience. It may also reduce the person's moral culpability. Where that principle applies full weight must be given to that background in the sentencing decision. The Crown accepted that the Bugmy principle is enlivened in the case of Ronald Nikua and that the penalty to be imposed on him should be reduced to take account of his reduced moral culpability and his youth. I intend to adopt this approach in his case.
To the offender's credit he has, since being in custody, expressed a realisation that his drinking and associates had become a problem for him and his family. He has now expressed an acceptance that alcohol makes him aggressive and angry and that he needs to bring it under control. He has expressed significant remorse, both in his evidence and to the psychologist to whom he accepted responsibility and did not attempt to minimise his offending.
He commented on how the victim at the Marayong incident did not deserve to be treated as he was and that his own brother could have died as a result of his injuries in the Mount Druitt incident, and that he himself could have died and left his daughters without a father. The offender has, since being in custody, recognised that many of his former friends had been a poor influence and he says that he wants to form better relationships in future with friends who will be a better influence.
The Sentencing Assessment Report assesses Mr Nikua as being a medium to low risk of re-offending and also notes that he expressed remorse and insight into his offending. Given all of the evidence, including his lack of any real criminal history, the fact that he has significant support from his wife and family, and good employment prospects, I assess his prospects of rehabilitation as reasonably favourable.

Jeramiah Orika

I turn to consider the subjective matters concerning Mr Jeramiah Orika. Mr Orika is now aged 31 and was 30 at the time of the Marayong offences. His criminal history does not entitle him to leniency especially as it includes prior matters of violence and affray. His case is aggravated by the fact that at the time of the offences, he was subject to Intensive Correction Orders for offences of assault occasioning actual bodily harm and affray. Those Intensive Correction Orders have been revoked effective from 16 April 2019 as a result of the current offences. This is, however, his first period in custody.
He did not give evidence on sentence, however, some information concerning his background is provided in the Sentencing Assessment Report which notes that he worked as a leading hand scaffolder before his arrest. He also expressed some remorse and insight to the Community Corrections Officer, saying he feels bad for the victim. He attributed his offending to being under the influence of alcohol, and acknowledged that he needs to reduce his alcohol intake if he is to avoid offending in the future.
I have no doubt that Mr Orika's offending was in large part due to his intoxication at the time, but of course, as I have already noted, this is not an excuse and does not mitigate the seriousness of his actions.
He has been assessed in the Sentencing Assessment Report as a medium-low risk of re-offending, although this, in my opinion, is very much subject to whether he can bring his drinking under control. In my view, his prospects of avoiding re-offending are uncertain and I am not able to conclude that they are good.

Trevor Sio

Turning to Mr Trevor Sio. Mr Sio is currently 37 years of age and has no relevant criminal history. His psychological report records a history of growing up in New Zealand and being raised by his maternal grandmother with whom he had a very close bond. He came to Australia in 2002 and has been in a long-term relationship with his partner for 20 years with whom he has three teenage daughters. His family remains supportive and he has a good work history and is employed in the scaffolding industry and has also involved himself in volunteer community programs.
As the offender did not give evidence, I need to approach the contents of the psychological report with some caution as is always the case where an offender does not give evidence to confirm the contents of such a document. However, the history given to the psychologist is given support by the contents of the Sentencing Assessment Report as are the offender's expressions of significant remorse. The history, and the apparently out of character nature of these offences for him, is further supported by letters from Mr Sio's employers who describe him as an exemplary employee with a calm and responsible manner. Letters from his partner and mother also attest to his generally pro-social character and support the conclusion that these offences are out of character.
The psychologist formed the view that Mr Sio was affected by an adjustment disorder and acute intoxication at the time of his offences and expresses the opinion that his actions were out of character and the psychologist further says that this conclusion is supported by psychological testing.
A significant element of Mr Sio's recent history is that his maternal grandmother, with whom he had a close relationship, died in 2018, which was not long after the death of his father. These events, according to the psychologist, impacted heavily on Mr Sio and contributed to his excessive alcohol and other drug use in the period leading up to and on the day of the offences. The psychologist assessed Mr Sio as ordinarily a person who is warm, friendly and sympathetic and without significant anger problems. The psychologist was also satisfied that the offender was genuinely ashamed and deeply remorseful for his actions, has stopped drinking alcohol, and is prepared to engage in treatment. In the psychologist's opinion the offending behaviour was the product of the offender's adjustment disorder arising from the deaths of his father and maternal grandmother combined with his intoxication at the time which itself was a form of coping mechanism. As the psychologist notes and as I accept, "Alcohol has likely impaired Mr Sio's ability to control his actions." And, "Anger is a prominent feature of grief and loss and depression."
I accept that the offender, Mr Sio, is genuinely remorseful for his offending and has expressed genuine regret as to the impact on the victim. In my opinion, Mr Sio's prospects of rehabilitation are reasonably positive given his lack of criminal history, family supports, good work prospects, steps towards abstinence, and his willingness to engage with treatment.

Reuera Torotoro

I turn to consider the subjective matters relating to Mr Torotoro. This offender is currently 26 years of age. After his parents returned to the Cook Islands for a number of years he was raised largely by his grandparents who apparently provided him with a reasonably stable upbringing. He left school after year 10 and commenced work in the construction industry. From about the age of 14 he started hanging around with the wrong crowd and had some problems with the law which included a period of about 15 months' full-time custody in 2014 to 2015 for offences of resisting police, taking and driving a conveyance and being involved in a police pursuit.
Disregarding Children's Court matters, his only prior offence involving violence is the 2014 resisting police matter. He has two children although he has lost contact with one of them who lives in Brisbane with her mother. He has a history of excessive alcohol use from about age 15, although a psychological report admitted in the sentence hearing indicates that since these offences he has significantly reduced his drinking. The psychologist concluded that at the time of the offences Mr Torotoro was experiencing severe anxiety and a depressive disorder and that these are likely to have contributed to his poor decision-making. The psychologist concluded that Mr Torotoro expressed shame and remorse in relation to his offences and accepted that there was no excuse for them. He also expressed some remorse to the author of the Sentencing Assessment Report stating that he felt "really guilty" and was sorry for the victim. However, he did not give evidence in the sentencing hearing and so the genuineness of this remorse was not able to be tested.
Furthermore, the Sentencing Assessment Report notes that the offender tried to justify his actions and minimise his role, tending to blame the incident on his associates and claiming that he was partly acting in self-defence. Character references tendered on his behalf speak about him as a humble and kind person and a valued employee. The offender also has, to his credit, written a letter addressed to the victim in which he expresses shame and apologises for his actions.
Taking all of this material into account, I find that there is some evidence of remorse and contrition, however, the weight that I can put on that evidence is reduced because the offender offered no evidence on oath and because of the contradictory statements reported in the Sentencing Assessment Report. Although the offender claims to have reduced his alcohol use, the Sentencing Assessment Report notes that he has not yet engaged with any services which might assist him in this regard in the future and that his history of engagement recently and in 2016 had been poor.
The Sentencing Assessment Report assesses him as a low-medium risk of re-offending, which I accept. I would describe his prospects of rehabilitation as guarded and I consider his future prospects heavily depended on whether he can avoid or at least limit his intake of alcohol.

Jaydon Tuahuru

Turning finally to the subjective case concerning Mr Jaydon Tuahuru. He is currently 26 years of age. The Sentencing Assessment Report indicates that he comes from a large and supportive family who remain a positive factor in his life. However, inquiries with his family indicate that he has not discussed his offences with them, apparently due to shame.
He apparently has a consistent work history and his employer says he is a reliable and respectful worker. While he has pleaded guilty to the offences, he did not entirely accept the extent of his involvement, claiming to the Community Correction Officer that he had not meant to hurt anyone and had tried to stop the incident. He also claimed, however, that he regrets his actions and the Community Correction officer thought that he did display awareness about the possible effects, both physical and emotional, on the victim.
Although he did not give evidence on oath, I accept the contents of the Sentencing Assessment Report which indicates that he did express some genuine remorse. This is supported also by the fact that he accepted a referral by Community Corrections to be involved in an 11-week program which commenced on 8 October 2020 entitled "Community of Inquiry into Pacific and Maori Family Matters." The Sentencing Assessment Report assesses Mr Tuahuru as being a low risk of re-offending, which I accept, given his lack of any prior convictions or charges. In my opinion, his prospects of rehabilitation are reasonably favourable.
As I have already noted, each of the offenders are entitled to a discount of 25% due to the utilitarian value of their early pleas of guilty. However, in my opinion, those pleas of guilty are also, in each case, indicative of some remorse given that in each of the offences before the Court there would have been considerable difficulty involved in determining the liability of each of the offenders in what were very chaotic and confusing events. In my opinion, therefore, each of the offenders is entitled to have his plea of guilty treated as some evidence of remorse over and above any remorse to which I have referred already.

PARITY

An important factor in sentencing these six offenders is the question of parity, that is, the requirement that I ensure that the sentence imposed on any individual offender is not in the mind of a reasonably informed observer such as to raise a justifiable sense of grievance by being inconsistent or out of step with the penalty imposed on another or others in comparable circumstances. In other words, that I ensure that the sentence imposed on any single offender is fair, or has the appearance of fairness when compared with that imposed on others. In carrying out that exercise, however, I must only compare like with like.
This is a particularly difficult task in this case for at least the following reasons:
Firstly, because of the number of offenders to be sentenced.
Secondly, because of their different roles in the offences and the differences in their personal circumstances.
Thirdly, because two of the offenders, namely the Nikua brothers, are also to be sentenced for an additional offence.
Fourthly, because in sentencing the Nikua brothers I am required to have regard to sentences imposed on other persons involved in the Mount Druitt affray incident as well as their differing objective and subjective circumstances.
In regard to the Mount Druitt affray, the Crown submitted that the sentences to be imposed on Joseph and Ronald Nikua should be around the same as that imposed by his Honour Judge Hanley SC on Mr Seve, that is a sentence of two years' head sentence with a non-parole period of 12 months.
The crown accepted that there were differences between the objective and subjective factors applicable to the three offenders but suggested that after all relevant matters are balanced, there is little or nothing to separate the three offenders in terms of appropriate penalty.
In my view, the most important difference between Joseph Nikua and Mr Seve is the fact that Joseph had, at the relevant time, no relevant criminal record and in the case of Ronald Nikua, the major difference in comparison with Mr Seve is that Ronald had no criminal record at all. He is a person whose moral culpability is reduced on the count of Bugmy v The Queen factors and who also has demonstrated significant remorse. In my view, these differences are such that they ought to be reflected to some degree in the ultimate head sentence and non-parole period to be imposed on Joseph and Ronald Nikua in relation to the Mount Druitt affray offence. However, in doing so I need to take care to avoid imposing, by undue reference to parity with Mr Seve, sentences that fail to reflect the seriousness of the offence and which give inadequate weight to the factors set out in section 3A of the Crimes (Sentencing Procedure) Act 1999. This is a further demonstration of what I have found to be a very complex sentencing exercise.

CONCURRENCY/ACCUMULATION

Given that each of the offenders is to be sentenced for more than one offence, another issue to which I have had regard is whether and to what extent the sentence for each offence should be concurrent or should involve some accumulation.
The Crown submitted in relation to the Marayong offences, that the sentence to be imposed on each offender for the affray offence should be entirely concurrent with that for the reckless wounding in company offence. Ordinarily, the sentences to be imposed for those two offences which involve different acts would, in my view, have required some degree of accumulation. In my opinion, this is particularly the case with respect to Mr Sio's actions in the affray offence and to a lesser extent, the actions of Mr Orika in that affray offence. However, given the position adopted by the Crown, I intend to reflect in the sentences I impose only a limited degree of accumulation for the Marayong offences.

DETERMINATION

I am satisfied in relation to all offenders that the section 5 threshold is crossed and that a period of imprisonment is required in each case. In coming to that view I have had regard not only to the matters to which I have referred already but also to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999.

Sentence - Joseph Nikua

In the matter of Mr Joseph Nikua, I intend to impose an aggregate sentence. In doing so I am required to record the indicative sentences that I would have imposed had I not imposed an aggregate sentence. I will announce the aggregate sentence in a few moments. The indicative sentences are as follows:
For the Marayong affray offence, a term of imprisonment of one year and ten months. For the Marayong wounding in company offence, a term of imprisonment of two years ten months with a non-parole period of 18 months and for the Mount Druitt affray offence, taking into account the matter on the Form 1, a term of imprisonment of one year 11 months.
In the case of Mr Joseph Nikua, I impose an aggregate sentence of three years nine months' imprisonment and a non-parole period of two years. I have made a finding of special circumstances such as to justify a reduction in the normal ratio concerning the non-parole period. I make that finding on the basis that this is Mr Joseph Nikua's first time in adult custody and secondly, on the basis of the need for an extended period of supervision. That aggregate sentence will date from 4 October 2019. That aggregate head sentence of three years nine months will therefore expire on 3 July 2023. The non-parole period of two years will expire on 3 October 2021.

Sentence - Ronald Nikua

I turn to the offender Mr Ronald Nikua. Again, I intend to impose an aggregate sentence. The indicative sentences that I would otherwise have imposed are as follows:
For the Marayong affray offence, a period of imprisonment of one year and ten months. For the Marayong wounding in company offence, a period of two years ten months with a non-parole period of 17 months. For the Mount Druitt affray offence, taking into account the matter on the Form 1 document, a term of imprisonment of one year 11 months.
In Mr Ronald Nikua's case, I impose an aggregate sentence of three years seven months that being the head sentence and a non-parole period of 22 months. I have made a finding of special circumstances based upon this being his first time in custody and secondly the need for an extended period of supervision once he is released to Parole. That aggregate term of three years seven months will date from 4 October 2019 and will expire on 3 May 2023. The non-parole period of 22 months will date from the same date and expire on 3 August 2021.

Sentence - Jeramiah Orika

I turn then to the offender Mr Orika. In his case I intend also to impose an aggregate sentence. The indicative sentences that I otherwise would have imposed are as follows:
For the Marayong affray offence, a term of imprisonment of one year 11 months. For the Marayong wounding in company offence a term of imprisonment of two years ten months with a non-parole period of two years. Instead of those indicative terms I impose an aggregate sentence of three years one-month imprisonment with a non-parole period of two years two months. I have made a finding of special circumstances to a limited degree on account of the need, in my opinion, for an extended period of supervision once he is released to Parole and also there was an acknowledgement of some degree of remorse to which I have referred already.
In setting a commencement date for Mr Orika's sentence, I need to take into account the fact that his custody since 16 April 2019 has been in part due to the revocation of his Intensive Correction Order by reason of his arrest on these offences. The effect of that revocation was that he spent four months, two weeks and four days in custody under the previous term of imprisonment. It is within my discretion as to what date between 16 April 2019 and the expiry of the previous term of 2 September 2019 the current sentence should commence. Having regard to totality principles and the fact that the offender served almost half of that ICO and that it was revoked solely on the basis of these offences, I propose to backdate the sentence by two months from the expiry of the Intensive Correction Order so as to commence on 3 July 2019. The head sentence will therefore expire on 2 August 2022. The non-parole period will expire on 2 September 2021.
In relation to Mr Sio, Mr Torotoro and Mr Tuahuru, I note that none of them are currently in the general area of the Court and they should come forward into the general body of the Court.

Sentence - Trevor Sio

In Mr Sio's case I intend to impose an aggregate sentence. The indicative sentences that I would otherwise have imposed are as follows:
For the Marayong affray offence, a term of imprisonment of two years. For the Marayong wounding in company offence a term of imprisonment of two years ten months with a non-parole period of 18 months. Instead of those I impose an aggregate sentence of three years two months and a non-parole period of 19 months. I made a finding of special circumstances based upon this being Mr Sio's first period in custody and based on the need for there to be a significant period of supervision once he released to Parole. That sentence will date from today, 8 December 2020. The head sentence will expire on 7 February 2024 and the non-parole period will expire on 7 July 2022.

Sentence - Reuera Torotoro

The matter of Mr Torotoro I intend to impose an aggregate sentence also. The indicative terms are as follows:
For the Marayong affray matter, a term of imprisonment of one year ten months. For the Marayong wounding in company matter a term of imprisonment of two years ten months with a non-parole period of 17 months. Instead of those I impose an aggregate sentence of two years 11 months. That will date from today, 8 December 2020.

Sentence - Jaydon Tuahuru

In the matter of Mr Tuahuru I intend to impose an aggregate sentence also. The indicative terms are for the Marayong affray offence a term of imprisonment of one year ten months and for the Marayong wounding in company offence two years ten months with a non-parole period of 17 months. Instead I impose an aggregate sentence of two years 11 months.
In relation to Mr Torotoro and Mr Tuahuru, I have considered whether in accordance with section 66 of the Crimes (Sentencing Procedure) Act 1999 the sentences in their cases should be served by full-time custody or whether it is more appropriate to order that they be served by Intensive Correction Order in the community. Having regard to the paramountcy of community safety set out in section 66 but also the other purposes of sentencing set out primarily in section 3A of the Crimes (Sentencing Procedure) Act 1999, I have reached the view that community safety in this case would best be served by ordering that they serve those sentences in the community. Therefore, pursuant to section 7 of the Crimes (Sentencing Procedure) Act 1999, I order that Mr Tuahuru and Mr Torotoro serve those sentences in the community.
The standard conditions will apply to those orders.
Firstly, that they not commit any offence.
Secondly, that they submit to supervision by a Community Correction Officer.
In each of their cases I impose the following additional conditions:
Firstly, that they participate in counselling or other treatment relating to alcohol abuse as directed by Community Corrections.
Secondly, that they participate in anger management or other counselling as directed by Community Corrections.
Thirdly, that they not associate with any of the five co-offenders to whom I have referred and who I have sentenced today.
Fourthly, that they each complete 300 hours' community service.
The offender, Mr Torotoro is to report by telephone to Fairfield Community Corrections Office within seven days from today and the offender, Mr Tuahuru, is to report by telephone to Mount Druitt Office of Community Corrections within seven days.
Finally, I note that in determining all of the sentences I of course take into account principles of totality so as to avoid imposing any sentence that might otherwise be described as crushing.

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