R v Pikula [2015] ACTSC 380

1. Taniela Pikula be convicted of assaulting Kasey King and occasioning him actual bodily harm on 30 May 2014.

2. Taniela Pikula be sentenced to twenty-two months imprisonment to commence on 31 May 2014, to take account of pre-sentence custody.

3. Taniela Pikula be convicted of causing by an unlawful or negligent act or omission grievous bodily harm to Paul Mapa.

4. Taniela Pikula be sentenced to twenty-seven months imprisonment to commence on 28 February 2015, that is to be cumulative as to fourteen months for the assault occasioning actual bodily harm.

5. A non-parole period be set to commence on 31 May 2014, and to end on 30 December 2015.

6. It be recommended to the Sentence Administration Board that a condition of Taniela Pikula's parole include a requirement that he undergo treatment and counselling as appropriate for alcohol abuse.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - assault occasioning actual bodily harm - causing grievous bodily harm by unlawful or negligent act or omission - use of weapon - knife - offender highly intoxicated - family violence - extra curial punishment - offender on conditional liberty - late plea - childhood alcohol and drug use - alcohol abuse - need for treatment - significant criminal record - history of violence - lengthy parole period

Crimes Act 1900 (ACT), ss 24, 25

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 77, 89

Ashdown v The Queen (2011) 219 A Crim R 454

Auld v The Queen [2013] ACTCA 21

Bugmy v The Queen (2013) 249 CLR 571

Douglas v The Queen (1995) 56 FCR 465

Liu v Western Australia [2012] WASCA 218

R v Aldridge (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 194 of 2012, 15 October 2013)

R v Byrne [2015] ACTSC 113

R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398

R v DF (No 2) (2012) 257 FLR 31

R v Freeman-Quay (No 3) [2015] ACTSC 284

R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014)

Legal Aid ACT (Defendant)

1. There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family.

2. Part of the available options to protect members of the community include legislation, which makes it an offence to commit acts of violence, and also courts, to punish those who have been found guilty of committing such acts in breach of that legislation.

3. Taniela Pikula visited his mother's house on 30 May 2014 and, after consuming a significant quantity of alcohol, got in to an argument with his step brother, Paul Mapa. Another step brother, Kasey King, tried to separate the two and, in the process, was stabbed in the back of his thigh with a knife by Mr Pikula.

4. The following evening, Mr Pikula again became highly intoxicated and had another argument with Mr Mapa. This time Mr Pikula stabbed Mr Mapa twice in the back and the knife wounds punctured his lung.

5. As a result, Mr Pikula was charged with assault occasioning actual bodily harm, recklessly inflicting grievous bodily harm and, in the alternative, causing grievous bodily harm by an unlawful or negligent act or omission.

6. On 15 September 2015, Mr Pikula pleaded guilty to the first and third counts, which the Crown accepted in full satisfaction of the indictment. The Crown agreed to file a Notice Declining to Proceed in respect to the second count, see R v DF (No 2) (2012) 257 FLR 31 at 38; [45].

7. Accordingly, it now falls upon me to sentence Mr Pikula for the two offences to which he has pleaded guilty.

8. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of five years imprisonment.

9. Causing grievous bodily harm by an unlawful or negligent act or omission is an offence under s 25 of the Crimes Act which also provides for a maximum penalty of five years imprisonment.

10. I have set out a summary of the facts above (at [3]-[4]), but I need to set out the facts in a little more detail for the purposes of the sentencing.

11. Although he did not reside there, Mr Pikula would often visit his mother's house at McKellar.

12. He visited on Friday 30 May 2014 and, when he arrived, he began drinking heavily. By the evening, he was heavily intoxicated. His step brother, Paul Mapa, was also drinking alcohol. Mr Mapa was fifteen years old at the time.

13. Perhaps unsurprisingly, the two got into an argument. Alcohol can have that affect. At this time, another of Mr Pikula's step brothers, Kasey King, who was fourteen years at the time, stood between the two as they argued and pushed Mr Mapa towards his bedroom. Mr King noticed that Mr Pikula was following them and, in trying to stop him doing so, kicked his right leg out behind him towards Mr Pikula. As he did this, Mr Pikula, who was holding a butter knife at the time, stabbed the knife into Mr King's right thigh.

14. Mr King went to his bedroom and wrapped a shirt around his leg but was unable to get any medical treatment as there was no one who could drive him to the hospital.

15. The next morning, Saturday 31 May 2014, Mr King called his sister and told her what had happened but said that Mr Pikula had "accidently cut his leg".

16. His sister drove Mr King and his mother to Calvary Hospital where the 7cm laceration was treated and closed using five stitches. Mr King told doctors treating him that he had sustained the injury when jumping on a bed that had a knife on it but he told a teacher the next day that he had sustained the injury while protecting his brother.

17. Later on Saturday, Mr Pikula was again at his mother's house watching movies and both Mr Pikula and Mr Mapa were consuming alcohol.

18. By 10.00 pm, Mr Pikula had become quite intoxicated and, when Mr Mapa went to his bedroom for the evening, Mr Pikula entered his bedroom wearing earphones and singing loudly. This irritated Mr Mapa who repeatedly told him to get out. Mr Pikula refused and Mr Mapa began to push him out of the bedroom. A fight ensued which spilled into the kitchen.

19. During the fight, Mr Pikula grabbed a steak knife and stabbed Mr Mapa twice in the back, once over the back left shoulder and the other over the right shoulder. The knife wounds punctured Mr Mapa's lungs.

20. Despite this, Mr Mapa fought back and inflicted injuries on Mr Pikula. He punched and kicked him.

21. An ambulance was called and both police and ambulance arrived and Mr Mapa was taken to Canberra Hospital. Mr Pikula was intoxicated and also taken to Canberra Hospital for further medical assessment of the injuries he had received from Mr Mapa. At about 4.30 pm the next day, Mr Pikula was interviewed and told police that he had no memory of what had happened but that he and Mr Mapa had probably had a fight and that he used a knife to fight him off.

22. Mr Mapa sustained two penetrating injuries to his upper back at the shoulder blade resulting in a pneumothorax, that is, a collapsed lung. This required emergency intervention with the insertion of a catheter in his right chest wall and mechanical ventilation. The injuries were described as very serious and potentially life threatening, that required active resuscitation and treatment to preserve life.

23. Mr Pikula was also examined by a medical officer, this was because, after he was stabbed with a knife, Mr Mapa had proceeded to attack and beat Mr Pikula, as I have mentioned above (at [20]). He punched and kicked Mr Pikula who was, at the time, on the floor. Mr Pikula suffered multiple injuries, being abrasions, bruising and areas of redness on his face, arms and torso. Medical opinion was that they were the result of blunt trauma, consistent with punches and kicks. The head trauma was serious, for it is associated with an increased risk of the victim suffering a dementing illness later in life. He was assessed as suffering pain and discomfort for some days. This is relevant to sentence as a form of extra curial punishment. See R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 410-1; [62]. It does not seem to me to moderate the appropriate punishment to a great degree.

24. At the time of the offences, Mr Pikula was subject to a Good Behaviour Order made for twelve months on and from 12 July 2013, when was convicted in the Magistrates Court of an offence of damaging property. A core condition of the Good Behaviour Order was that he commit no offences punishable by imprisonment.

25. In addition, Mr Pikula had been granted bail by the Queanbeyan Local Court on 14 December 2013, with conditions that he be of good behaviour and not consume alcohol.

26. Thus, he was at conditional liberty at the time, with express conditions that he be of good behaviour and not commit further offences punishable by imprisonment. This is, of course, an aggravating feature which is relevant to sentencing. See Auld v The Queen [2013] ACTCA 21 at [9].

27. Mr Pikula was arrested on 31 May 2014 and refused bail. He has been in custody since then.

28. Mr Pikula pleaded not guilty in the Magistrates Court and was committed for trial on 12 August 2014.

29. On 9 September 2015, the proceedings were listed for trial in this Court on 14 September 2015. On that day, the proceedings were adjourned as no witnesses had appeared for what was to be a Basha Inquiry. See R v Basha (1989) 39 A Crim R 337. The following day, 15 September 2015, after Mr King had been arrested for failing to answer his subpoena and had then given sworn evidence on the inquiry, Mr Pikula pleaded guilty to the charges to which I have already referred.

30. Although it was a very late plea, there are two relevant matters in sentencing. The first is that Mr Pikula said that he had no memory at all of the events of the evening and Mr King had not given a statement to police but, when he heard Mr King's evidence, he immediately pleaded guilty. A second is that the Crown accepted a plea to the less serious charge of the two preferred in relation to the second attack. The maximum penalty is less and, accordingly, the relative seriousness of the offence is less.

31. I had a Forensic Mental Health Report and a report from the Court Alcohol and Drug Assessment Service (CADAS) from which I make the following findings.

32. Mr Pikula was born in Fairfield, New South Wales, twenty-seven years ago and one of eleven children to his Aboriginal mother and Tongan father.

33. His father, however, left his mother and she struggled to raise all the children on her own. Mr Pikula described her as "a struggling alcoholic" when he was younger and he saw a lot of fights at home.

34. The family frequently moved, mostly around Sydney, and later to Lismore and then Canberra. His childhood was mostly spent in Sydney.

35. Mr Pikula had a rather unsatisfactory schooling. He was involved in fights on about four occasions and was suspended on three occasions for fighting. He was also asked to leave school on one occasion due to poor attendance. He left school permanently at the start of Year 9 having earlier begun to associate with older peers who were "bad influences", introducing him to crime and drug use.

36. Thus, he was exposed to alcohol abuse and violence at an early age and to anti-social peers. This childhood disadvantage is a relevant matter on sentencing.

37. Mr Pikula has never been in employment. When placed in custody in the Alexander Maconochie Centre, however, he was given a job as a sweeper of the education block and reported, "I like it, it feels good to work". This is a small glimmer of light suggesting the possibility of rehabilitation. He is reported as being a "willing worker who is polite and well mannered".

38. Mr Pikula has completed a Certificate II in Land Management and Conservation and commenced an Associate Degree in Art through the Justice and Equity Through Access/Art Program at Curtin University.

39. He has completed the SMART recovery program while in custody. Material provided by ACT Corrective Services describes the program, an acronym for 'Self-Management and Recovery Training', as a psycho educational program which assists detainees to address problematic behaviours, such as the use of alcohol, drugs, cigarettes and gambling and with issues that, for some detainees, can become problematic, such as food shopping and internet use. The program uses trained peers and professionals to guide the participants to help themselves and fellow participants by using cognitive behavioural therapy and motivational tools and techniques. The program aims to improve a participant's mental and physical health, increase lifestyle opportunities and enhance quality of life, especially by analysing factors that trigger problem behaviour and assisting participants to learn and consolidate the knowledge, skills and confidence needed to make informed decisions. Each program is conducted over 20 hours at two hours per week.

40. Mr Pikula has also been undertaking other courses while in custody. Thus, he has completed Construction Induction (White Card) and a Certificate II in Waste Management. He has also showed a strong and intense commitment to education and work programs.

41. In addition, he has participated in culturally specific activities, particularly with what are called the NAIDOC dancers.

42. Mr Pikula came to Canberra about three years ago. He has "reconnected" with his father over recent years and described this as "quite positive".

43. Before his arrest he was on the Newstart Program with Centrelink.

44. Mr Pikula appears to be in good physical health and has no history of contact with mental health services. He previously sustained a head injury and had one hospitalisation as a result of drug use. The Forensic Mental Health Report states that he does not suffer from a mental condition, although he previously experienced a drug induced psychosis. There is no current indication of that.

45. Nevertheless, he has a problematic substance abuse and the report recommends that he should engage in drug and alcohol counselling.

46. He first used alcohol when he was twelve, a remarkably young age, but unsurprising in the context of his childhood circumstances. While he would generally abstain from alcohol between Monday and Thursday, he would binge drink from Friday to Sunday and consume up to one hundred and fifty standard drinks over these three days. At seventeen, he began consuming alcohol on a daily basis for a short time. He now expresses the wish to remain abstinent.

47. He clearly became a significant alcohol abuser at an age well before he could make any kind of informed decisions about that. As stated in Douglas v The Queen (1995) 56 FCR 465 at 470, the age at which an offender became addicted is relevant to the extent of punishment that is appropriate for criminal conduct resulting from the addiction.

48. He has been a very occasional user of cannabis and has tried cocaine socially in the past and heroin once.

49. He commenced smoking ice at age 17 and, for about 12 months, smoked ice regularly on the weekends. He has used benzodiazepines without prescription and ecstasy from time-to-time but in neither case is there recent use. His regularly smoked twenty-five cigarettes a day but has been abstinent from tobacco for about two and a half months. His drug use is not insignificant. He was admitted to hospital with a drug induced psychosis when he was seventeen years old, as I mentioned above (at [44]).

50. Mr Pikula has previously engaged in counselling treatment for alcohol and drug use through a service in Sydney. He is, however, willing to engage in further treatment.

51. The assessment of the author of the CADAS Report is appropriate where she says:

Mr Pikula presented as an adult male with a long term history of problematic alcohol and other drug use. He has described being exposed to drug use and crime from an early age and has himself spent a considerable period of time in custody. He reports to having supportive family members and to be well engaged with work and study programs currently in custody at the AMC.

52. Mr Pikula has a significant criminal record, although only one conviction in Territory courts, namely a damaging property offence, committed on 12 April 2013.

53. In New South Wales, he has thirty-three offences of which he has been found guilty. Ten are traffic offences and twelve are dishonesty offences but, worryingly, he has five offences of violence on his record, including an earlier offence of assault occasioning actual bodily harm. One is an offence of resisting police, not a serious offence of violence, and of which too much cannot be made.

54. He cannot be punished again for his record but it is relevant to an assessment of his likely rehabilitation and to mark a continuing disobedience to the law.

55. As I have indicated above (at [1]-[2]), violence of the kind that Mr Pikula committed is unacceptable in our community.

56. Although the maximum penalties for the offences are not the most serious that are set for offending behaviour, they show that the offences should be treated seriously. Prison sentences are often imposed for such offences because of the impact on our community.

57. In addition, it is an aggravating feature to find that knives are used in association with such violence. Maxwell P referred in Ashdown v The Queen (2011) 219 A Crim R 454 at 464; [20], to the fact that the use knives in the community is to be abhorred. Thus, as was said in Liu v Western Australia [2012] WASCA 218 at [86], such use requires a sentence of general deterrence.

58. It is also troubling that this is in the nature of domestic violence although not, as is regularly the case, violence committed against women. Nevertheless, both victims were young at the time and could be expected to be safe in their home amongst their family. I do note, however, that both Mr Mapa and Mr King were larger men than Mr Pikula.

59. While I had no Victim Impact Statements, it was accepted by the Crown that Mr Mapa's injuries, while serious at the time, did not in fact have long term consequences and that he did not have ongoing disabilities. I can also understand and take into account at least the physical consequences had on the victims.

60. As I have noted above (at [26]), the offences were also more serious because Mr Pikula was on conditional liberty at the time.

61. While it is not correct to say that the offences were provoked, it is clear that there were fights involved and both participants were affected by alcohol.

62. Nevertheless, as Mr R Davies, counsel for Mr Pikula, accepted, those offences are objectively serious, the second more serious than the first.

63. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is a significant factor and must be given due weight.

64. Mr Pikula has some history of violence and it appears that one of the charges for which Mr Pikula was on bail from the Queanbeyan Local Court was a charge of wounding with the intention to cause grievous bodily harm, said to be committed on 14 December 2013. While he has not been convicted of that offence, this does suggest that specific deterrence may be an important factor in sentencing. In addition, I refer to the five offences of violence on his record and while that is not very significant and not the most common of these offending behaviours, it is a matter of concern.

65. Nevertheless, the Crown properly conceded that Mr Pikula's moral culpability was somewhat less because of his gross intoxication at the time he committed both offences.

66. Denunciation of the behaviour is significant, as is recognising the harm done to the victims. In this case, very significant harm was done to Mr Mapa which was, in fact, life threatening. Accordingly, I have regard to the seriousness and nature of the offending behaviour. Its association with alcohol provides some opportunity for rehabilitation but that cannot overwhelm the other purposes of sentencing.

67. I also have regard to the factors set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out above. I have particular regard to the childhood depravation that Mr Pikula suffered and its continuing relevance as pointed out in Bugmy v The Queen (2013) 249 CLR 571 at 594-5; [43]-[44]. There is no doubt that alcohol abuse is a major problem for him. It started at a very early age.

68. He said that he has nearly always been under the influence of alcohol when committing offences. An inspection of the criminal record shows this likely to have been the case. There is not much evidence, however, of attempts to manage his alcohol abuse.

69. I take limited account of the injuries inflicted on him by Mr Mapa in the second incident.

70. So far as sentencing practice is concerned, I have inspected the ACT Sentencing Database for the offences. Such statistics are of limited value but they did give a snapshot of some of the accumulated wisdom of the Judges. See Ashdown v The Queen at 511.

71. The Crown referred to three decisions: R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014); R v Byrne [2015] ACTSC 113 and R v Freeman-Quay (No 3) [2015] ACTSC 284. They were all cases where sentences have been imposed for the offence of causing harm of negligent act or omission.

72. These cases make clear the need to consider the conduct of Mr Pikula and the harm suffered by the victims.

73. In R v Byrne at [62]-[65], I reviewed sentences that had been imposed in this jurisdiction. The cases had some similarity to this case but may be regarded as less seriousness than these offences.

74. Because I have no Pre-Sentence Report, it is not possible to consider a community service work condition to a Good Behaviour Order nor the service or a term of imprisonment by periodic detention. See ss 77 and 89 of the Crimes (Sentencing) Act.

75. Nevertheless, the seriousness of the offending, in the all the circumstances, seems to me to warrant a period of full time custody and neither of those alternative options are appropriate.

76. I see some prospects for rehabilitation for Mr Pikula in what he has done since he has been in custody. Of course, that may not translate to behaviour in the community, but I consider that some encouragement should be given for that. He will, however, need to address his alcohol abuse. It is clear that, when in custody and without intoxication, he shows important pro-social qualities.

77. In my view, encouragement for him would require at least that the sentence includes a lengthy parole period, for he will need supervision and control for a lengthy period to help him redirect his efforts.

78. I consider, too, that I should recommend that any parole order includes some significant alcohol abuse treatment and counselling.

79. While in a somewhat different context, it is not inappropriate to apply what Nield AJ said in R v Aldridge (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 194 of 2012, 15 October 2013):

I accept that it is not to say that he could not act towards changing his lifestyle. He is relatively young and he is not beyond redemption. He may turn over a new page in his book of life but like so many things in life, only time will tell.

80. Because there are two offences, I must consider the question of totality.

81. Accordingly, I have carefully considered the length of each of the sentences to be imposed to ensure that there is no possibility that Mr Pikula is to be punished twice. I have also considered whether the sentences should be partly or wholly concurrent. Here, there is no question of the two offences being part of the same enterprise. They were committed a day apart. Nevertheless, there is a degree of commonality and continuity in the offending behaviour.

82. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not too severe and leaves open the realistic prospect of reform and hope for Mr Pikula's achievement of his goals when he returns to the community. Where necessary this to achieve this, I have adjusted the cumulation or concurrency of the individual sentences to ensure that.

1. I convict you of assaulting Kasey King and occasioning him actual bodily harm on 30 May 2014.

2. I sentence you to twenty-two months imprisonment to commence on 31 May 2014, to take account of pre-sentence custody. Had you not pleaded guilty I would have sentenced to twenty-four months imprisonment.

3. I convict you of causing by an unlawful or negligent act or omission grievous bodily harm to Paul Mapa.

4. I sentence you to twenty-seven months imprisonment to commence on 28 February 2015, that is to be cumulative as to fourteen months for the assault occasioning actual bodily harm. Had you not pleaded guilty I would have sentenced you to thirty months imprisonment.

5. That is a total term of imprisonment, because of next year's leap year, of two years, eleven months and twenty-seven days.

6. I set a non-parole period to commence on 31 May 2014, and to end on 30 December 2015.

7. I recommend to the Sentence Administration Board that a condition of your parole include a requirement that you undergo treatment and counselling as appropriate for alcohol abuse.

I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge