R v Tuigamala

• 15 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: The prisoner David Tuigamala was convicted after trial of the murder of Barry John Alexander. He now appears for sentence. FACTS:

2 The offence occurred at about 5am on 6 December 2003 at the Club Hotel, Campbelltown, where the prisoner and some associates were drinking. He had earlier attended another hotel but, on his account, while he had been drinking beer and bourbon and Coke, he was not overly affected by alcohol. On his own estimate, he placed himself at 5 on a scale of 1 to 10 of intoxication. 3 The deceased, who was also drinking at the hotel, was, however, very much affected by alcohol, as was evidenced by his blood alcohol concentration of 0.285 grams of alcohol per 100 ml of blood, ascertained following the post-mortem examination. 4 He had been drinking with friends for about nine hours or so at various establishments, including Sweeneys, The City Hotel and the Club Hotel. 5 The offence occurred when the deceased walked from the toilet area of the hotel toward the table where the prisoner was sitting with some Islander friends. As he approached their table, some words were spoken which led to the prisoner striking the deceased once to the face with a heavy left hook. It landed with sufficient force to knock the deceased, who was a large 39 year old man, 176 centimetres tall and weighing 116 kgs, to the ground knocking him out. 6 Hotel security staff arrived at the scene and instructed the prisoner to move away. They lifted the deceased to a sitting position, where he sat, slumped and at best only partially conscious. While being held up, the prisoner stepped forward from the group of men who had gathered and kicked the deceased savagely to the left side of the face with a heavy size 12 Colorado boot which he was wearing. 7 The deceased was flung back to the ground and although attempts were made to resuscitate him, he died within a very short time, before the arrival of police and ambulance staff. 8 The blow with the boot was likened by eyewitnesses to a man kicking a football. It landed with sufficient force to cause significant injuries to the left side of the deceased's face, including fractures to the left auxiliary sinus, fragmented fractures of the maxillary sinus, a fracture of the inner end of the inferior margin of the left orbit and a comminuted fracture of the left nasal cartilage. 9 The prisoner is himself a large and powerfully built man who was aged 29 years at the time of the offence and who had trained, although not fought, as a boxer. 10 The deceased was found to have died as a result of the combined effect of asphyxiation due to the presence of blood in his airways and lungs coming from the nasal and sinus injuries. 11 There were only two issues in the trial; namely, whether the prisoner had intended to cause grievous bodily harm to the deceased and whether he had acted under provocation. To some extent, these were associated in that they related to evidence which was led at the trial from the prisoner and from Winston Tuliakioni to the effect that, as the deceased approached the prisoner's table, he had said words to the effect, "fuck you, fuck you" or "fuck you all", or "fuck off", although nothing more. 12 A somewhat more offensive observation was attributed to him by Vali Sua with whom the deceased had been engaged about an hour earlier in an exchange, which could have led to an altercation, but which was amicably resolved due to the intervention of two other patrons and which led to them shaking hands and having a drink together. 13 It was Sua's account that the deceased had said to the prisoner, who was an Islander, and to the other islanders at his table, "You think you black cunts can come and rule this club". An issue arose as to whether he was telling the truth or attempting to assist his friend. No one else gave evidence of hearing this observation, and when Sua spoke to police, within days of the offence, he said that he could not remember the words that were used. I have no doubt that the jury disbelieved this part of the evidence. I similarly disbelieve it in view of the fact that neither the prisoner, who said that he reacted to the words which had been spoken by the deceased, or Tuliakioni, heard the offensive and insulting words which Sua attributed to him. 14 I accept that the deceased did use the expression "fuck you" when speaking to the prisoner, but whether that was a gratuitous unprovoked observation or whether he was responding to something that the prisoner had already said is less certain. There was in that regard some support for a finding that the prisoner had spoken himself, before the punch, having regard to the evidence of Margarita Lopez that she heard him say, while the bouncers were assisting the deceased, "He deserved it. I told him to fuck off". 15 Whatever did occur, the jury found that provocation had been negatived by the Crown. Properly was that so, since the jury would been well entitled to have been satisfied, if the observation "fuck you" had been made, either once or repeated, that it was not such as could have caused an ordinary person in the position of the prisoner, and of his age and maturity, to have so far lost his self-control as to form an intent to kill or to cause grievous bodily harm. 16 There was also an unanswerable case, based upon the evidence of the prisoner, and independently supported by the evidence of the eyewitnesses, that he paused after the punch, contemplated what he would do next, and then deliberately launched a powerful kick to the face of the deceased with the knowledge and intention of causing him grievous bodily harm. 17 To that extent, but only to that extent, the fatal kick was premeditated. That arises not only from the interval between the punch and the kick, during which period the bouncers had come over and asked the prisoner to move away, Sua had told him not to do any more, and the bouncers had been bringing the deceased to a sitting position. It also arises from the several admissions which the prisoner made during cross-examination concerning his state of mind. I do, however, accept that what occurred had not been planned before the exchange between the two men. 18 The prisoner's conviction for murder was inevitable, and while he has shown some limited remorse for the offence in the histories which he has provided to the experts who have provided evidence on sentencing, he does continue to attribute at least some of the blame to the deceased. To that extent, his insight into his criminality is at best partial. 19 It is obvious that he was angry, and it is also probable that this was in part due to the effects of alcohol on him and also to his limited intelligence and powers of self-control, to which I will return shortly. 20 The prisoner's anger might help to explain why the offence was committed, but it does not exclude the existence of the intention which was required for the offence of murder. Alcohol might also have had some effect in causing the prisoner to overreact, but it similarly does not provide any defence. 21 Assuming in the prisoner's favour that the words "fuck you" were used, they were hardly sufficient to justify any significant response, let alone the exceedingly violent response that occurred on this occasion. The prisoner's reaction was brutal, it was excessive, and it involved a form of conduct, in using the boot, for which the community holds a particular abhorrence. 22 I have taken the victim impact statements, from the widow and father of the deceased, into account in accordance with the principles stated in R v Previtera (1997) 94 A Crim R 76, a decision I consider to be binding upon me until it is reconsidered by the Court of Court of Criminal Appeal in the light of the most recent amendments to the Crimes (Sentencing Procedure) Act 1999: See R v Berg [2004] NSWCCA 300, where the possibility of its review was raised, but reserved for another day. 23 The victim impact statements show, in a most graphic way, the devastating consequences upon the family of the deceased who have lost a loved and supporting father as the result of a senseless act of criminality. It is impossible to summarise the loss which has been occasioned in a few short paragraphs, and to do so, or to attempt to do so, would only be to detract from their content. 24 It is enough to say that a large family has been significantly and permanently shattered by this event, and that a widow, and two young children, have been left in a situation which is beyond their comprehension, and which not only risks significant financial loss for them, but has left them with deep and permanent emotional harm. Clearly, no sentence which any Court could impose can ever even begin to substitute or rectify that loss.

SUBJECTIVE CIRCUMSTANCES 25 Subjectively, the prisoner is of Samoan extraction, having been born on 12 August 1977. He came to this country in 1993 and was, at the time of the offence, living in a de facto relationship. He has two children, and he had been largely employed as a labourer, storeman, car detailer, spray painter and furniture manufacturer. He was schooled to year 9 and had a difficulty with learning and truancy, both in his country of birth and in this country. 26 Unfortunately, as seems to be a feature of Samoan culture, he was subjected to physical discipline both at the hands of his father and school authorities, which was only likely to accustom him to violence as a means of response. That is, however, of limited significance since those who take up life in this country are expected to adjust to its norms or otherwise to accept the consequences. That arises from the fact that the protection of the community and deterrence are among the specific objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. 27 The prisoner has a prior record which commenced on 14 May 1997 with a conviction for malicious damage which led to a fine. One month later, on 11 June, he was fined again, this time for an offence of stealing. 28 On 23 April 1999 he was sentenced to imprisonment for two years and six months, comprising a minimum term of six months and an additional term of two years, for offences of aggravated robbery with wounding and robbery in company. 29 On 3 April 2000, he was sentenced to 12 months imprisonment for an offence of affray, and for an offence of assaulting a police officer in the execution of his duty. A probation period was fixed of four months. 30 On 18 May 2002, he was fined for mid range PCA and driving while never having been licensed. 31 This is a short, although discreditable record, which shows the prisoner to have had little regard for the constraints of the law. 32 A number of reports have been tendered as to the psychosocial and psychological background of the Prisoner, from Dr Reid, Dr Nielssen, Emma Collins and Danielle Castles. These reports record a consistent history of the prisoner having been a slow learner from childhood, and of having experienced a number of falls and fights which left him with some apparently minor head injuries, although without any signs of him sustaining permanent brain damage. 33 On psychological testing, it was found that he had experienced difficulty due to cultural and language factors in completing the relevant tests. He was however assessed as being of borderline premorbid intellectual ability, falling into the first percentile for persons of a similar age. He was also assessed as illiterate with poor verbal skills. It was Dr Reid's opinion: "I am of the opinion however his low intelligence, poor verbal skills and socio-cultural factors contributed to Mr Tuigamala's poor impulse control and violent outburst. Furthermore, it seems that Mr Tuigamala's limited cognitive abilities have resulted in him acting out his emotions, later being remorseful for his actions, a pattern of behaviour that has previously got him into trouble. It is felt Mr Tuigamala could benefit from a highly structured anger management program teaching him simple behavioural strategies to remove himself from situations where he is likely to get angry, recognise early warning signs of anger and have repetition of instructions and feedback within the behavioural management program."

34 Miss Collins and Miss Castles recorded, as part of the histories provided by the Prisoner, that he had been sent to Australia with the aim that eventually he would work and send money back to support his large family in Samoa. He found the environment in Sydney somewhat more favourable and less violent than at home, but he missed his family and he had some difficulties with his relocation, which increased when his uncle, with whom he was residing, died in 1996. Thereafter, he began to associate with delinquent peers and became involved in criminal behaviour. He also began to experiment with alcohol and substance abuse. 35 Miss Collins noted that, following the death of his uncle and the prisoner's departure from their home: "… his antisocial behaviour appeared to escalate, impacted by drug use and association with delinquent peers. In considering his history, Mr Tuigamala impresses as someone who lacks reasonable impulse control. This is suggested from the cognitive testing completed by Dr Reid, his deteriorating behaviour and general presentation during the assessment. Due to his poor cognitive functioning, Mr Tuigamala appears to lack the necessary resources to regulate his behaviour and is subject to irrational and impulsive behaviour. His alcohol use, particularly with regards to the current offence, acted as a disinhibitor in relation to his aggressive conduct. Furthermore, his exposure to violence from an early age normalises the use of aggression as a means of coping and control, and Mr Tuigamala simply does not have the internal mechanisms to regulate the expression of such behaviour. A synthesis of an early introduction to violence, reduced intellectual ability and alcohol abuse are integral factors in his impulse difficulties and as such resulted in his criminal conduct. He will need therapeutic assistance in order to learn to regulate his behaviours and not resort to aggression as a coping mechanism with regards to future stressors."

36 She also said that his difficulties with self regulation represent the highest risk factor with regards to his future dangerousness and added: "Mr Tuigamala remains a young man highly susceptible to the influence of others. His low resourcefulness and cognitive functioning, and his early exposure to maladaptive parenting will make it likely that he will be easily institutionalised within a custodial environment. It will be to his advantage to make as much use as possible of rehabilitation options, including an opportunity to utilise as early a release as possible to further his rehabilitation in the community. It is likely that Mr Tuigamala will need continued support upon his return to the community to help him integrate and resume employment upon release. At that time, a review of his potential for substance abuse treatment will be necessary." 37 Dr Nielssen, who was principally concerned with the prisoner's fitness to plead, as to which he was satisfied, eliminated any form of psychiatric disorder. Although he did not subject the prisoner to any formal psychological testing, he assessed his overall intelligence to be at the bottom half of the normal range, rather than at the level equivalent to mental retardation. This was based on his vocabulary, verbal expression, literacy and general knowledge disclosed during the interview. I consider that this impression of Dr Nielssen was likely to have been a more realistic assessment of the prisoner's functioning intelligence, since it was clear that he had some limitations due to language, and the like, in response to formal testing. THE SENTENCING 38 The case is one to which the provisions of s 3A and s 21A of the Crimes (Sentencing Procedure) Act apply. It is also one which falls within Division 1A of part 4 of the Act, being an offence identified in the table, to that Division, as carrying a standard non-parole period of 20 years. 39 The application of those provisions was established by the Court of Criminal Appeal in its decision in R v Way [2004] NSWCCA 131, where it was said by the Court: "117. In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?" 118. That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). 119. Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. 120. Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 121. If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act . 122. In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount. 123. The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range. 124. The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect. 125. Sight should also not be lost of the fundamental principle noted in Hoare v The Queen (1989) 167 CLR 348 at 354: "Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances." 126. It is true that the Division does not specify either a minimum or a maximum non-parole period for the relevant offence, nor is there anything to suggest that it had in contemplation either a linear, or an exponential progression within a range between those points, in which the mean was to be understood as the standard non-parole period. Had there been an intention to convert sentencing to a precise arithmetic exercise of that kind then those reference points would need to have been identified and consideration given to the weight to be attached to the adjusting factors. The absence of any provision of that kind is a further pointer towards the continuation of a wide area of discretion, without resort to some rigid mechanistic or arithmetic approach, of the kind which would be totally unsuited to the difficult task of sentencing. 127. The approach which we have outlined does not seem to require a departure from the intuitive or instinctive synthesis approach to sentencing which received judicial support in R v Thomson and Houlton (2000) 49 NSWLR 383 at paras 57-60 and which was favoured in the joint judgment in Wong v The Queen (2001) 207 CLR 584, but which has also attracted some criticism ( R v Markarian [2003] NSWCCA 8 - special leave to appeal to the High Court granted). Nor do we see it as requiring resort to a rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticised in AB v The Queen (1999) 198 CLR 111, per McHugh and Hayne JJ."

40 I am satisfied, having regard to the test laid down in that decision, that the offence of the prisoner should be assessed as one which would place it in the mid range of objective seriousness for an offence of its kind. I am also satisfied that there are no reasons for not imposing the standard non-parole period. 41 In the present case, the violence was extreme, and as I observed, not only did the prisoner fail to respond to attempts to restrain him, he also had the opportunity for reflection, between the punch and the kick, yet he elected to go ahead with a further brutal response to a defenceless man on the ground. While I accept that he has limited intelligence and powers of self-control arising from his background and personality, and acted excessively while partially intoxicated, I am not persuaded that those factors in this case significantly reduced his objective criminality. 42 In short, the case is not one where there was that degree of psychiatric or psychological disturbance, or disinhibition, or significant dysfunctional background, or other circumstances, beyond a trivial provocation, to provoke the explosive rage and loss of self-control that was exhibited. 43 In the present case, the aggravating factors which are referred to in s 21A, which were not themselves ingredients of the offence of murder, are confined to those mentioned in s 21A(2)(d), that is in relation to his prior record of criminality. The only mitigating factors referred to in s 21A(3) that were present were those mentioned in subparagraph (b), that mentioned in subparagraph (c) to a very limited extent in so far as the deceased offered the relatively mild observation "fuck you", and also that referred to in (i) to a limited extent. 44 The uttering of the words mentioned, although they were no doubt offensive and unnecessary, could hardly have been a shock to a person such as the prisoner who has served time in prison and who could not be described as a naive or delicate man unaccustomed to earthy language. 45 Otherwise, all that operates in his favour, particularly in the absence of any evidence of significant remorse, is that the killing was not planned, was to a considerable extent impulsive, and was not one where the prisoner intended the consequence to be a death. 46 As I have indicated, there was to a limited degree remorse, but it is not a case where there has been a clear or significant expression of remorse. I am satisfied that the prisoner was aware that the consequences of his act would at least be very serious facial injury although no doubt he did not contemplate a death. To that extent, the factor referred to in s 21A(3)(j) does not apply. 47 The offence here involved is the kind of offence which calls for a sentence that carries with it not only a significant element of personal deterrence, but one that also conveys a significant element of general deterrence. Those who frequent hotels need to understand that they are places for convivial social gatherings and not an occasion for vicious street brawls. The mix of alcohol, aggression and youth is always volatile, but that fact only strengthens the need for restraint on the part of those who attend such places. 48 The prisoner has not responded favourably to probation or parole in the past, and I find that his prospects of rehabilitation are at best slim, in the light of his record, his limited intelligence and self-control, and his preconditioning to violence as a first response. That emerges from the expert reports which I have earlier noted. 49 I do not consider in this case that special circumstances exist that would require an extension of the balance of term as provided by s 44 of the Crimes (Sentencing Procedure) Act. Clearly, the prisoner would benefit from a lengthy period of post release supervision as well as anger management counselling. However, the balance of the term which I have in mind would be sufficient to provide for that. I would, however, recommend that such counselling commence during the term of his custody. 50 Otherwise, as explained in the decisions in R v Simpson (2001) 53 NSWLR 704 and R v Fidow [2004] NSWCCA 172, I have taken into account the various matters that could otherwise qualify as special circumstances, in setting the sentence, and to reapply again, by way of a special circumstances, would only be to involve a double counting of the kind which the authorities say is inappropriate. 51 Upon that basis, I sentence you, David Tuigamala, to a non-parole period of 20 years to date from 7 September 2003, and to a balance of term of six years. The overall sentence, accordingly, is one of imprisonment for 26 years to date from 7 September 2003 with a non-parole period of 20 years to date from 7 September 2003 and to expire on 6 September 2023. The last mentioned date is the earliest date on which you will be eligible for release on parole.

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