R v Serutawake

Judgment 1MATHEWS AJ: On 20 October 2014 Ratu Joji Serutawake was indicted on a charge that, on 21 October 2012, he murdered Adi Cavora Baleimalea Boe Tavuki. He pleaded not guilty, and a jury trial then proceeded. On 29 October the jury returned with a verdict of guilty of murder. He now comes to be sentenced for that offence. 2The offender and the deceased were both Fijian by origin. They had been married for 19 months at the relevant time, and had a son who was then 13 months old. They were living in a unit at the Narrabeen Lakeside caravan park, together with a much older man, Mr Sare, who suffered from Parkinsons disease and other cognitive deficits which meant that he was unaware of what was happening around him. The offender was his full time carer, and at the time of the killing was also the primary child minder, as the deceased was working as a nursing assistant at a nearby nursing home. 3In the early hours of the morning of Sunday 21 October 2012 the offender's aunt, Suluia Geka, received a phone call from the offender asking if she would come and collect the baby. Ms Geka, together with her husband Rupeni, then went straight to the caravan park. After they arrived Ms Geka was talking to the offender outside the cabin while her husband went inside to look for the baby. There he found the body of the deceased lying on the lounge room floor. He immediately telephoned the police and the ambulance, both of which arrived a short time later. In the meantime, he asked the offender what had happened. The offender said: "sorry, uncle, it is an accident." 4The offender was arrested at the scene and taken to the Dee Why Police Station where he was interviewed later that day. He was charged with the murder of the deceased, and has been in custody ever since. 5A post mortem examination revealed that the deceased had sustained approximately 22 stab wounds. Five of them were potentially fatal on their own. The forensic pathologist, Dr Brouwer, presented a report and gave evidence in which she described the deceased's injuries in considerable detail. The five potentially fatal injuries were to the left side of the face, to both the left and right upper chest, the right upper abdomen and the mons pubis. Three of these injuries were life threatening because they had perforated a major blood vessel, while the wounds to the left upper chest and abdomen had perforated, respectively, the deceased's lung and her liver. In addition to the stab wounds, Dr Brouwer said that she observed a number of incised injuries, being superficial injuries caused by a sharp object. A number of these were present inside both of the deceased's hands, and were probably defensive injuries, caused by the deceased grabbing onto the blade of a knife. 6The only other people inside the cabin at the time of the killing were Mr Sare and the baby. For obvious reasons neither of them was in a position to describe the events leading up to the killing. Accordingly we are entirely dependent on the account given by the offender, together with the physical state of the cabin immediately after the killing, when seeking to determine what it was that precipitated this extreme violence. 7The offender was interviewed by police on the afternoon of Sunday, 21 October 2012. He said that between about 11.30 and 1.00 am the previous night he and the deceased had been sitting on the deck outside their cabin and had consumed 10 cans of Woodstock bourbon and coke, five cans each. They did this regularly on weekends. Otherwise they did not normally drink at all. On this particular night there had been an argument between them, in which the deceased had criticised the offender's mother. The offender said that he went inside the cabin and went to bed, without telling the deceased that he was planning to do so. Some time later he was woken up by the deceased who was very angry that he had not told her that he was coming in to go to sleep. This was at about 3.00 am. He said that the deceased started to throw things around and was smashing and breaking things. She was also packing her possessions in order to leave. She was coming in and out of the room that the offender was in, and at one point she punched him. Their son woke up, and the offender brought him some milk, and then lay down beside him in an attempt to go back to sleep. However he could not sleep because of the noise that the deceased was making, so he got up and went into the living room. The deceased was proposing to take their son with her. The offender told her that she could come back and get him another time, and this led to a further argument in which the deceased started smashing other things. At that point, he said, he snapped. He went into the kitchen and got a knife and then came back and repeatedly stabbed the deceased. While he did so she was saying that she was sorry and that she would not go, and was pleading for him to stop. He only stopped when the handle of the knife broke off, at which point he went back into the kitchen and threw what was left of the knife into the kitchen sink. He then went back into the bedroom where their son was, and lay down beside him in order to get the boy to sleep. Then, some time later, he went out to the living room and realised that the deceased was dead. He immediately rang his aunt, Ms Geka, and asked her to come and get the young boy. Telephone records show that this call was made at 4.24 am. The events that followed have already been described. 8The Crown prosecutor queried some aspects of the offender's account of the events leading up to the killing. In particular, the Crown submitted that the police photographs of the interior of the cabin do not support the offender's version that the deceased was constantly throwing and breaking things before he finally "snapped". In this regard, the only broken object appeared to be the cot. However when one looks at the photographs, the cot itself - quite a large item of furniture - was broken into a number of pieces. That on its own would have taken quite a bit of time and energy. In addition, a large number of items, including documents, baskets and clothing, were scattered around the hall and the bedroom and must have been thrown there. Accordingly, I do not consider that there is a sufficient discrepancy between the state of the cabin and the account given by the offender to cast doubt on the overall veracity of his version. 9A further significant matter queried by the Crown relates to whether the deceased really did intend to take the baby with her when she left, this being the matter which, on the offender's version, finally made him "snap", and thus led directly to the killing. The Crown prosecutor pointed out that the deceased had already packed her suitcase at the time of her death, but it contained only her own clothing, nothing for the baby. Moreover, there had been a couple of occasions earlier in 2012 when the offender and the deceased had separated, and each time the deceased had left the baby in the care of the offender. I acknowledge the persuasiveness of these submissions, but in the particular circumstances of this case I do not consider that they can override the version given by the offender. He has always accepted full responsibility for this killing. It is not as if he has been trying to minimise his culpability. And from the very beginning he has said that it was the deceased's intention to take the baby which led directly to his reacting in such an extreme way. In all the circumstances I think it is most unlikely that he has been manufacturing this version in an endeavour to alleviate his position. Moreover, the fact that it was the baby's cot which the deceased broke directly supports the proposition that she was intending to take the baby with her rather than leave him behind. 10The final matter which the Crown disputes is whether the deceased did in fact punch the offender during the course of their argument, as he claimed in his interview. No injuries were observed on the deceased's hands or the offender's face which would support this assertion. On the other hand, it was never claimed by the deceased that this was a severe blow which caused any injury or pain, only that it happened or, as he put it during his police interview, that the offender became "physical" with him. This being the case, the absence of any visible injuries cannot, in my view, be used to refute his version. I do not, in any event, regard this as a particularly significant matter. 11The offender, as indicated, has never sought to deny that it was he who inflicted the fatal injuries. The defences raised at his trial were self defence (or, more precisely, defence of another, namely their son) and provocation. No evidence was called in the defence case, the defence relying upon the totality of the material that had been presented by the Crown. The jury's verdict indicates that it found both defences adversely to the offender. 12Amongst the Crown witnesses at the trial was a forensic pharmacologist, John Farrar, whose area of research includes the effects of alcohol and other drugs on human subjects. He was asked about the likely effect on the offender of the five cans of bourbon and coke which he had consumed between about 11.30 pm and 1.00 am on the morning of the killing. Mr Farrar estimated that at 3 am the offender's blood alcohol concentration would have been between .086 and .143 per cent. Excessive alcohol, he said, interferes with the ability of a person to take in information and to process it in a rational way. It can also lead to a person behaving out of character. In this regard, there was evidence that the offender had no prior convictions of any type, and had always been regarded as a gentle, quiet and non-aggressive person. I do not mention this evidence because I propose to use the offender's alcohol intake as a relevant matter on sentence, but as providing a partial explanation for his behaviour on this occasion, which on all accounts was completely contrary to anything he had ever done in the past. 13During the sentencing proceedings I asked counsel where, in their submissions, this killing should be placed in relation to the mid-range of offences for murder. The Crown submitted that it was in the mid-range, whereas Mr Austin submitted that it was below the mid-range. The violence of the attack on the deceased is, in this respect, a highly relevant matter. She was stabbed repeatedly, and in many different parts of her body, while she was desperately pleading with the offender to stop. On the other hand, this was an entirely spontaneous, unpremeditated killing, which occurred when the offender lost control of himself in response to the actions of the deceased. Certainly his response was completely out of proportion to the deceased's actions, which is no doubt at least one of the reasons why the jury rejected his defences of self defence and provocation. But the overall circumstances do reduce his level of culpability. In my opinion this killing falls below the mid-range of offences of murder, although not significantly so. 14I turn now to say something about the offender himself. Much of this comes from two reports of the forensic psychiatrist, Dr Bruce Westmore, who saw the offender in prison in January and again in November 2014. 15The offender is now 31 years old, having been born in Fiji on 17 August 1983. His father had a history of alcohol abuse and domestic violence, and his parents separated when he was 12 years old. It was also when he was 12 that the offender started smoking cannabis. He told Dr Westmore that he continued taking it on a daily basis until the weekend of the deceased's death. Indeed he was expelled from school, and later from a medicine school, because of his cannabis use. He commenced but did not complete training as a commercial pilot. He came to Australia in 2010. At the time of the killing he was, as already mentioned, a full time carer for Mr Sare, as well as being the primary minder of his young son. He told Dr Westmore that, about two months before the killing, he started hearing voices, or having auditory illusions. He was embarrassed about this, and told no one at the time. Dr Westmore considered it probable that these symptoms were caused by the offender's cannabis abuse. He did not think that they had a causal relationship with the killing of the deceased. 16When the offender was assessed by Dr Westmore his mood state was depressed. The doctor described his affect as: "intense, restricted, anxious, mildly agitated and tearful at times." He diagnosed the offender as suffering from a major depressive disorder with psychotic symptoms, which was related to post-traumatic stress disorder and arose out of the killing of the deceased. In this regard, the offender continually expressed regret and remorse in relation to his actions. 17I should mention here that, on the second occasion that Dr Westmore saw the offender, on 21 November 2014, the offender told him that he had had no family visits over the previous six months. The Crown then obtained a report from the Corrective Services Department detailing the offender's prison visits, which was annexed to the affidavit of Shelley Charles and tendered into evidence. This showed that a number of family members had visited the offender in that period. However, when one analyses this material, it emerges that family visits occurred on only two days between 2 June and 21 November, with each visit involving a number of relatives. When one compares this with the number of family visits at the end of the previous year, it is very sparse indeed. Accordingly I am attaching no particular significance to this matter. 18The offender has consistently expressed his regret and remorse for this offence. There was a suggestion from the Crown that these expressions came late in the day and should be treated with reservation. However the evidence, in my opinion, indicates otherwise. Even in his first police interview, on the afternoon of the killing, the offender said: "Just thinking back now, I don't know what came over me last night. I didn't plan it that way... we were supposed to celebrate her birthday today. I'm so sorry for what I've done." When Dr Westmore first saw him in January this year he was constantly expressing his regret, as he did again in November. Indeed, the fact that the offender now suffers from post traumatic stress disorder as a result of his own actions in killing the deceased speaks for itself as to the extent of his regret and remorse. In the circumstances I have no doubt that his remorse is both genuine and extreme. This is not only a significant matter in itself, but it is also relevant to some of the other sentencing considerations, to which I now turn. 19Section 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Act") sets out a number of aggravating and mitigating circumstances which are required to be taken into account on sentencing. The Crown referred to two aggravating factors under subs 21A(2) which are not necessarily inherent in the offence of murder. The first is that the offence involved the actual use of a weapon. However I have already taken into account the fact that the offender used a knife to stab the deceased when I was assessing the seriousness of this offence. Had the killing occurred in a less violent way, without the use of a weapon, I would almost certainly have concluded that it was significantly below the midline of seriousness for murder. Accordingly, it would be inappropriate to take this matter into account as a further aggravating circumstance. 20The other matter relied upon by the Crown under sub s 21A(2) is that the offence was committed in the victim's home, thereby violating the sense of security and safety which all people should be able to enjoy within the confines of their home. On the other hand, this was also the offender's home. It is therefore not nearly as serious a violation as it would be if an outsider had broken into the home and attacked the deceased. Accordingly, I take this matter into account, but in a limited way. 21There are a number of mitigating circumstances referred to in subs 21A (3) of the Act which are relevant to this case. The first is that the offence was not part of a planned or organised criminal activity; also, that the offender did not have a record of previous convictions, and that he was a person of prior good character. I have already referred to the extent of the offender's remorse in this case. This is not only a material consideration in itself, but it is also relevant to two other mitigating factors under subs 21A(3), which are, first, that the offender has good prospects of rehabilitation, and secondly that he is unlikely to re-offend. These, of course, are closely interconnected. Given that the offender was, before this offence, a person of apparently unblemished character, and given the devastating impact that this offence has had upon every aspect of his life, I consider it very unlikely that he will re-offend. He must therefore be taken to have very good prospects of rehabilitation, and I take this into account as a significant matter on sentence. 22For these reasons, personal deterrence has little role to play in this case. However the same cannot be said about general deterrence, which must remain a significant factor in the sentencing process. Far too many killings occur in a domestic setting such as this, and it is incumbent upon the courts to impose sentences which will hopefully operate to deter others from behaving in a similar way in the future. 23The maximum penalty for murder is life imprisonment. This is reserved for the worst category of cases, and there could be no suggestion of its imposition in the present case. The standard non parole period is 20 years. Since the High Court decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, this has been recognised as a guidepost rather than a starting point, as had previously been considered. Given the various mitigating circumstances I have mentioned, together with the fact that the offence itself falls below the mid range of offences for murder, it is, in my view, appropriate to impose a non-parole period which is significantly below the standard period. 24An extremely moving victim impact statement was read in Court by the deceased's father, Laitia Tavuki. The Court expresses its sincere sympathy and condolences to Mr Tavuki and other family members. I take this statement into account in the manner permitted by law. 25One final matter must be mentioned. The Crown applied for a direction that this offence be recorded on the offender's criminal record as a domestic violence offence, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act, 2007. Mr Austin did not oppose this application. The killing of the deceased clearly falls within the definition of a "domestic violence offence" under this legislation. Accordingly, I direct, pursuant to s 12(2) of that Act, that this offence be recorded on the offender's criminal record as a domestic violence offence. 26The offender has been in custody since 21 October 2012. His sentence is therefore to be backdated to commence on that date. 27Ratu Joji Serutawake, for the murder of Adi Cavora Tavuki, I sentence you to imprisonment consisting of a non-parole period of 16 years to commence on 21 October 2012 and to expire on 20 October 2028. The balance of the term will be 5 years, expiring on 20 October 2033, making a total sentence of 21 years. The earliest date on which you will be eligible for release on parole will be 21 October 2028.