R v Tafuna Taumalolo

The autopsy

1. An autopsy was performed on the deceased by Dr Burger on 28 and 29 May 2019. The cause of death was determined to be traumatic basal subarachnoid haemorrhage.
2. A post-mortem CT scan showed extensive subarachnoid haemorrhage with no evidence of skull fractures but an undisplaced fracture of the nasal bone on the right side was present. There was also haemorrhage in the cervical subdural and subarachnoid spaces, spinal nerve roots and soft tissue around the spine.
3. A lesser component of coexistent traumatic brain injury was noted. The appearance of the lungs suggested an aspiration event.
4. A number of abrasions and bruises were noted on the head and neck area, mostly involving the sides of the deceased's face and neck. The following specific injuries were noted: Head and neck injuries i. Multiple abrasions and superficial bruises left side of forehead. ii. Bruise of upper eyelid, abrasion on lateral aspect of lower eyelid. iii. Abrasions left cheek and left corner of the mouth. iv. Abrasions surrounding the right ear (anterior, posterior, inferior, and overlying mastoid process). v. Multiple abrasions on the right ear (anterior and posterior aspects). vi. Faint area of bruising inferior to the left ear. vii. Small injuries on the inner aspects of the lips. Trunk Injuries 55. Faint areas of intra-dermal bruising and/or abrasion: i. Overlying the head of the left clavicle, ii. Chest wall anterior to the right, iii. Superior back, to the right, iv. Central part of the upper back, v. Back, left lateral aspect, vi. Posterior aspect of the left shoulder. 56. Large bruise on superior aspect, left pectoral major muscle. Limb injuries 57. There were minimal abrasions and bruises on the upper and lower limbs.

Objective seriousness

1. The Crown submitted that the offending was within the midrange of objective seriousness. Mr Anderson SC for the offender submitted that the conduct fell below the midrange of objective seriousness for offences of this type. He pointed to a number of matters to support that conclusion. First, he submitted that the evidence showed that the offender's intention was to inflict grievous bodily harm rather than to kill Alex. Secondly, there was no planning or premeditation about the attack. Thirdly, no weapon was used by the offender. Fourthly, the evidence from the report prepared by a clinical neuropsychologist Lisa Zipparo contained a description by the offender of being under the effects of alcohol and MDMA at the time of the attack. It was said that the drugs made him "uncontrollably angry" and, in combination with the "disrespecting" of his cousin, and in the company of the young men he was with, he acted in a manner inconsistent with his usual demeanour, consistent with the fact that he has no previous history of violence. Finally, although the offender was a member of the Claymore Boys, part of the South West gang, and despite what he was heard to yell out before the attack, this could not be regarded as a gang-related killing.
2. In relation to the offender's intention at the time of the assault, Mr Anderson drew attention to what was said in Charbaji v R [2019] NSWCCA 28 where the Court said at [180]: The intent to kill is a consideration generally tending to greater objective seriousness than an intention to inflict grievous bodily harm.
3. However, the Court went on to say that the question of intent is not the only consideration relevant to the assessment of the seriousness of murder, and that the absence of an intention to kill does not necessarily mean that the murder is less serious, quoting R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252 at [16]. That last statement has abundant support from cases such as R v Mills (Unreported, NSWCCA, 3 April 1995); R v Wilson [2005] NSWCCA 112 at [22] and R v Fahda [2013] NSWCCA 86 at [67]-[69].
4. In the present case, I find beyond reasonable doubt that the intention of the offender was to cause grievous bodily harm to Alex and not to kill him. What the offender is reported as having said to his sister and his girlfriend after he arrived home, following the assault, provides support for that conclusion, and the Crown does not contend otherwise.
5. Nevertheless, and despite the absence of planning or premeditation, this was a vicious and unprovoked assault, likely as a result of the offender's being under the influence of both drugs and alcohol, and in the company of people whom he doubtless knew would support him. It is aggravated by the fact that the offender was in company and, as his Senior counsel acknowledged, by the infliction on Alex of gratuitous violence, going well beyond the violence capable of constituting an intention to inflict grievous bodily harm.
6. The offender, having struck Alex with sufficient force to cause him to fall to the ground, then proceeded to kick him a number of times to his torso, face and head including stomping on his face, back and head when he lay defenceless on the ground. The damage caused by those acts is evident from the autopsy, showing the extensive subarachnoid haemorrhage, the haemorrhage in the spinal nerve roots and soft tissue around the spine, and the fracture of the nasal bone. The fact that no weapon was involved is of little importance when the use of the offender's legs and footwear achieved much the same result as could have been achieved by a blunt instrument.
7. The case against all of the accused was that there was a joint criminal enterprise to assault Alex. The offender was involved at least from the time he struck Alex so hard that Alex fell to the ground. The offender then continued to assault Alex by kicking and stomping on various parts of Alex's body, particularly his face and head, until the offender then fled the scene with the others. On these agreed facts, the offender's role was the most significant of those involved in the joint criminal enterprise.
8. The psychological report from Ms Zipparo recorded that the offender said that he felt angry because people were "disrespecting my cousin and calling her a slut". There is nothing in the agreed statement of facts or any other evidence supporting the assertion that anyone disrespected the offender's cousin in that way. In particular, there is nothing to suggest that Alex did any such thing. In the absence of evidence from the offender, I reject any suggestion that that was the trigger for the assault on Alex. It is, in any event, inconsistent with what two of the guests heard the offender to be saying after Alex's girlfriend was jostled.
9. The statement made by the offender at that time, "Where's Alex? Who's Alex?" might suggest that from that point the offender had decided to assault Alex, so that, to that extent, there was some premeditation that culminated in the assault. However, the agreed facts say that it was only when the offender was at the library after the assault that he learnt that the deceased's name was Alex. It is also clear that Ms Vaiuta does not identify the offender as saying, "We'll get him [ie Alex] after". What the offender was heard to say was, "Where's Alex? Who's Alex?".
10. That leads me to conclude that whatever may have been planned by the other males in response to Alex calling out "Oi" when his girlfriend was jostled, the offender simply engaged in, or joined in, an assault on a victim whose identity he did not know, but who happened to be Alex. That is also consistent with the offender having become involved in an altercation with another person for no specified reason shortly before. Of course, the fact that the offender assaulted Alex, not knowing who he was, does not make the assault any less reprehensible, but it does mean, contrary to the Crown's submission, that there was not even a short period of premeditation on the offender's part.
11. The fact that the offender had consumed drugs and alcohol prior to the offending cannot be taken into account as a mitigating factor (s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). It should, however, be noted that, according to Ms Zipparo's report, the offender knew that drugs made him "hypo" (he probably meant "hyper"), and he knew that the drugs and alcohol made him "agro".
12. I cannot be satisfied beyond reasonable doubt that the assault was gang-related. It is true that the offender was heard yelling out things in support of the gang and group to which he belonged, but Alex did not belong to a gang, and there is no evidence that the offender thought that he did. As I have indicated, it appears that the offender's assault on Alex was a random one because the drugs and alcohol had fuelled his aggression.
13. I consider that the objective seriousness of the offending is slightly below the mid-range.

Subjective factors

1. The offender did not give evidence at the sentence proceedings. He relied on two reports by Ms Zipparo. The first of these reports dated 29 March 2021 was prepared at a time when the offender's solicitors were seeking an opinion on his cognitive function. The second report dated 29 September 2021 was prepared, following a further interview, subsequent to the offender's plea of guilty. All of the information about the offender is derived from those reports.
2. The offender was the second of seven children to his parents. He had a good relationship with his siblings and his father, but the relationship was more volatile with his mother who was the main disciplinarian. He said that he was punished by his mother because they were "naughty boys, we used to disappear a lot and mum would worry". During adolescence the relationship with his mother deteriorated, and they had many shouting arguments.
3. The offender has had one significant relationship with a girl he met when he was 15 years old. They had a daughter who is currently aged three years. He told the psychologist that he was no longer in a relationship with the girlfriend, but was unsure why she did not want to be with him anymore.
4. He attended school in his local area but reported difficulties at school because he was picked on "for being poor". This would result in him getting bad tempered and engaging in fights with those who picked on him. He said he was eventually suspended for fighting in year 11 and did not return to school.
5. Although he struggled with his studies, the offender said he was good at sport. He played rugby league from the age of four, and eventually played representative football until age 19. In that regard he reported a long history of knocks to the head from football, sometimes weekly. He recalled a significant knock to the head when playing in the under 16s where he blacked out. He also reported significant knocks to the head due to "fights", including one occasion where he was jumped by a group of boys at a mall. They kicked his head while he was on the ground, and he blacked out. He noticed that his memory became poorer from about the age of 18, that he had trouble explaining things, and would often forget what he was talking about.
6. The offender's first job was sorting fruit at a fruit shop. He also did some labouring, and concreting with his cousin. He said his cousin found him work "full time building walls and doing general labouring", which he enjoyed.
7. The offender told the psychologist that he started drinking alcohol and using cannabis at the age of 14. He was smoking six cones a day. By the age of 16 his drug and alcohol use escalated to heavy daily use of cocaine and then MDMA. He told the psychologists that he came to the point where he was drinking up to two cartons of beer in a sitting, as well as regularly using cannabis, MDMA and cocaine. As noted, he said that MDMA made him "hypo", and he said that he felt much better after he had stopped drug and alcohol use, presumably when he entered into custody. It is of some concern, however, that subsequent to this report, the offender incurred a prison infraction for failing a prescribed drug test.
8. During the offender's first consultation with Ms Zipparo, she administered a number of neuropsychological tests. The psychologist determined that the offender's overall level of intellectual functioning was in the Low Average range. She found that he did not show any specific impairments in frontal lobe functioning, but there was impairment in verbal memory function. Ms Zipparo concluded that his long history of concussion from playing rugby league from an early age was the most likely cause of his memory deficit.
9. When Ms Zipparo saw the offender on the second occasion she said that he described several symptoms consistent with a diagnosis of Attention Deficit/Hyperactivity Disorder.
10. The offender told Ms Zipparo that he was angry at himself for what he had done, and said that he felt "very bad" that "a family had lost their son and brother" because of his actions. He told her that he had only "blurry memories" of the events, admitting that he had been heavily drug and alcohol affected. As noted earlier, he recalled feeling angry because people were "disrespecting my cousin and calling her a slut".
11. The offender said that his actions were caused by the effects of drugs and alcohol which had caused him to become "uncontrollably angry". He said that, had he not been under the influence of drugs and alcohol, he would have ignored the people who were disrespecting his cousin, because it was not normally his nature to get angry. That is not entirely consistent with his having told Ms Zipparo that since giving up drugs and alcohol he was now "calm, not agro like I used to be". Nor is it consistent with his school history of fighting. He also told Ms Zipparo that when he was under the influence of drugs and with his group of friends they did "bad stuff". He told her that he liked to be part of a group.
12. Ms Zipparo mentioned again that the offender had expressed remorse for his actions, and he also acknowledged the stress and anxiety he had caused his own family.
13. It is appropriate that courts should be wary of accepting second-hand evidence of remorse by offenders, when the offender is not prepared to give that evidence himself or herself, and be subject to cross-examination about it: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; and see most recently Lai v R [2021] NSWCCA 217 at [79]-[80]. Nevertheless, except where indicated otherwise, I accept the matters of self-report in Ms Zipparo's reports. Some of the information is supported by the results from Ms Zipparo's psychometric testing, and the offender does not generally whitewash his behaviour as a child or adolescent.
14. Ms Zipparo determined, after her consultation with the offender, that he suffered from Alcohol Use Disorder, Cannabis Use Disorder, Stimulant Use Disorder, Mild Neurocognitive Disorder and possible ADHD at the time of the offence. She does not express any opinion about the causal relevance of these matters. In particular, she does not suggest that his Neurocognitive Disorder nor any ADHD contributed to the offending.

Victim Impact Statement

1. A Victim Impact Statement was prepared and read by two of Alex's sisters. That Statement describes what a devoted son, brother and uncle Alex was to his family. It mentions his musical and sporting talents, and the great relationship he had with his nephews and nieces. It details the emotional and mental harm suffered by the members of Alex's family, especially his parents, as a result of his death. That is not at all surprising, given the violent and unexpected way Alex's life was taken from him, and how he was taken from his family. The Court again extends its sympathy to all of the members of Alex's family.

Deterrence, Rehabilitation and Reoffending

1. Murder is the most serious crime in the criminal calendar. Nothing can replace a life taken away, families are left devastated and nothing is the same for them again. Sentences for murder must serve as a deterrent to others. Offenders must themselves be deterred from continuing to offend.
2. However, considerations of general deterrence and principles of retribution are generally of less significance when the person sentenced is either a young person or a young adult. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The weight to be given to an offender's youth does not depend on the seriousness of the offence: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[23].
3. Although greater emphasis is given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, that emphasis may be moderated when the offender has conducted himself in the way an adult might conduct himself or herself and has committed a crime of violence or considerable gravity: KT v R at [25]. I accept, however, that in the present case there was no planning or other indicia of mature decision making, which might have had the effect of discounting the relevance of the offender's youth: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [6]; Howard v R [2019] NSWCCA 109 at [13] and [14].
4. Although I intend to make an allowance for the fact that the offender was aged 18 years and six months at the time of the offending, that is not to say that general deterrence and retribution is of little significance for the type of crime here, that is, serious violence emanating from a combination of alcohol, drugs, group mentality and masculine bravado. It occurs all too often. In too many cases, death ensues, but in many more cases the end result is serious and often permanent injury for one or more of the persons involved.
5. Young men and adolescents need to understand that if they consume large amounts of alcohol and drugs, and become involved in violent altercations leading to the death of a person, they cannot expect much allowance to be made for the fact that they are young and emotionally immature. Long prison sentences will follow. The Court of Criminal Appeal made clear in R v Loveridge [2014] NSWCCA 120 at [103]-[105] that general deterrence should be given substantial weight, notwithstanding the youth of the offenders in cases involving young men in company and under the influence of drugs and alcohol.
6. I accept that the offender has no prior criminal history. However, a further matter of concern is that during his time on remand, the offender was punished for "assaults". That would appear to represent a continuation of the offender's propensity for violence evident from his school days. Despite that history and despite the two prison infractions I have mentioned, I find that his prospects of rehabilitation are reasonable, although, as Ms Zipparo said in her second report, he appears to have limited insight into his own mood states and motivations. Nevertheless, he recognised that he had a substantial problem with substance abuse, and was aware of the detrimental effect drugs and alcohol had on his behaviour. I find that his prospects of rehabilitation are reasonable and his risk of reoffending is low. In that way, specific deterrence is not a significant consideration.

Remorse

1. The offender wrote a letter to the Court in which he said that he knows that nothing he could say or do would bring Alex back, and that it is very difficult for him just thinking about the Ioane family, the pain they were going through and the scars they would have to live with for the rest of their lives. He said that he has torn that family apart, and he can never forgive himself for what he has done.
2. I accept that what the offender says in that regard is an expression of his genuine remorse. It is consistent with what he told Ms Zipparo, and it is consistent with his reaction to his sister and his girlfriend when he arrived home that night after the murder.
3. I do not accept, however, the offender's statement in the letter that he is "not that type of guy who gets angry and wants to fight someone", and that it was the drugs and alcohol that took control. That statement tends to confirm Ms Zipparo's opinion that the offender has limited insight into his motivations.

Special circumstances

1. I have already indicated that I will take into account the offender's youth in the instinctive synthesis of the sentence that will be imposed. It is not appropriate to take that into account again when assessing special circumstances. I accept that this is the first time that the offender has come into contact with the criminal law, but that of itself is not a justification for a finding of special circumstances. I have found that his prospects of rehabilitation are reasonable. The sentence will be of sufficient length that there will be ample time during the parole period for the offender to reintegrate into society and to complete any rehabilitation that is necessary in that regard. I make no finding of special circumstances.

Covid-19

1. Mr Anderson submitted that consideration ought to be given to the conditions under which the offender would spend any sentence as a result of the lockdowns and visitor restrictions in New South Wales prisons. He submitted that those matters make incarceration more onerous, and should be taken into account in the sentence.
2. In McKinnon v R [2020] NSWCCA 106 at [32] the Court of Criminal Appeal said, at least in the context of the evidence in that case, that the more onerous conditions of incarceration due to the pandemic should be taken into account in sentencing. That approach was followed in R v Wang [2020] NSWSC 1335 at [83] although in connection with a foreign offender whose family resided overseas.
3. It is not clear if the Court in McKinnon was impliedly suggesting that all sentences imposed would now need to be modified to take account of the pandemic, or whether the pandemic needed to be taken into account on the particular evidence of the onerous conditions in that case. There is no evidence in the present case of particular difficulties for the offender, although certain statements about difficulties were made from the Bar table. Given that McKinnon may have been stating a general principle, I have taken into account that at the present time any sentence being served is, has been, and might continue to be for a period of time, served under more onerous conditions.

Sentence

1. I have had regard to the helpful schedule of comparable cases provided to me by Mr Anderson. The cases which I found to be of the most assistance were R v Pocock [2008] NSWSC 1435 and R v Wong [2010] NSWSC 171 but, no two cases being the same, they provide guidance only.
2. The offender was arrested on 26 May 2019 and has been in custody since that time. The sentence will therefore commence on 26 May 2019.
3. The offender pleaded guilty on 20 August 2021, after being committed for trial to this Court. He is entitled to a 10% discount for that plea pursuant to s 25D(2)(b) of the Sentencing Act. Had the offender not pleaded guilty, I would have sentenced him to 21 years' imprisonment. A 10% discount for the plea results in an overall sentence of 18 years and 10 months.
4. Tafuna Taumalolo, I sentence you to a non-parole period of 14 years and 1 month commencing 26 May 2019 and expiring 25 June 2033 with a balance of term of 4 years and 9 months expiring 25 March 2038. You will be first eligible for parole on 25 June 2033.
5. I am obliged to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

Amendments 08 November 2021 - Para [7] amended in relation to the deceased's date of birth only. 13 December 2022 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2022