R v Tuuta

Court of Criminal Appeal (NSW)|2014-03-17|Before: Bathurst CJ, Hoeben CJ, Bellew J, Mr P

Judgment 1BATHURST CJ - I agree with Bellew J. 2HOEBEN CJ at CL - I agree with Bellew J. 3BELLEW J - On 4 March 2013 Karli Polingi Tuuta ("the respondent") pleaded not guilty to an indictment alleging that on 14 January 2012, at Guildford in the State of New South Wales, he caused grievous bodily harm to CS ("the victim") with intent to cause grievous bodily to harm to her, contrary to s. 33(1)(b) of the Crimes Act 1900 NSW. On 8 March 2013, following a trial before his Honour Judge Craigie SC and a jury, the respondent was found guilty of that offence. 4The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment is prescribed. On 7 August 2013 the respondent was sentenced to imprisonment comprising a non-parole period of 3 years, 7 months and 6 days commencing on 3 September 2012 and expiring on 8 April 2016, with a balance of term of 2 years 4 months and 25 days expiring on 2 September 2018. The Crown has appealed to this Court on the basis that the sentence imposed is manifestly inadequate. 5At the time of being sentenced, the respondent had been in custody since his arrest on 29 February 2012. Between 29 February 2012 and 3 September 2012 he was serving the balance of parole in respect of a sentence imposed on 27 November 2009 at the District Court at Griffith for an offence of wounding with intent to cause grievous bodily harm. I have made further reference to that matter below.

THE CIRCUMSTANCES OF THE OFFENDING 6The circumstances of the respondent's offending are set out in his Honour's remarks on sentence and may be summarised as follows. 7On the evening of Friday 13 January 2012 the victim and a number of other young people had been at a youth event at a church in Merrylands, following which they went to Guildford to meet at a pastor's house. At the conclusion of the meeting the victim and her cousin made their way to the Guildford Railway Station. In the course of doing so, they were joined by a young man to whom I shall refer as FP, and a young woman to whom I shall refer as J. Between 2.00 am and 3.00 am on Saturday 14 January 2012 the victim was waiting with her friends at a bus stop adjacent to the Guildford Railway Station, intending to catch a taxi home. 8Whilst waiting for a taxi, a bus arrived from which the respondent alighted, in the company of another male. The respondent was known, albeit only by sight, to the victim. She had previously been in his presence, and that of a number of other people, at Town Hall Railway Station on the previous New Year's Eve. At that time the respondent appeared to be grossly intoxicated and was apparently falling asleep on the train that the victim and others had boarded with him. There was nothing arising from those circumstances which explained the present offending. Specifically, there was no evidence of any animosity arising between the victim and the respondent as a result of being in each other's presence on that occasion. 9Having alighted from the bus, the respondent walked over and shook J's hand. The victim told the jury that she and her cousin were minding their own business, playing with their telephones and looking at Facebook, when the respondent came and asked the victim if she wanted to "come ink dray", that being an invitation to come for a drink expressed in "Pig Latin" slang. The victim responded by indicating that she did not want to so and just wished to go home. There was nothing, be it in terms of what the victim said to the respondent or the manner in which she said it, which explains what followed. 10At that point the respondent turned away. After talking amongst other persons, he again turned towards the victim who described to the jury, in the following terms, what then took place: "So he asked me if I was Caroline and I said yes I was and then I was just minding my own business yet again, and then I was looking for (my cousin) because I knew she was talking to (FP), but I didn't know where she was. I was looking at my phone and turned to, I don't know where she was because I was looking at my phone, turned to I think it was the right or the left side, and I just felt an impact on my jaw and the, yeah, he just started laying into me. I didn't know why and yeah." 11Although not recorded in his Honour's remarks on sentence, there was evidence given at the trial by the victim's cousin (cited by the Crown in written submissions) that the respondent punched the victim six times with what were described as "real hard punches". Another witness estimated that the victim was hit between three and five times. 12The respondent's attack came as a total surprise to the victim. The only possible indicator of his intentions came from her observation shortly prior to the attack, of the respondent punching his clenched fist into the palm of his other hand. Although the victim observed what appeared to be a silver coloured flask in the respondent's possession, the sentencing judge (at ROS 3) found that there was no observation by any person that the respondent was intoxicated. 13Following the attack, the victim was initially taken to her cousin's home but it quickly became apparent that she was in need of medical attention. She was initially taken to a general practitioner who prescribed pain killers. However two days after the incident, when the swelling and pain in her face were persisting, she was taken to hospital. On admission to hospital she was noted to have obvious and considerable swelling around the area of her right and left ear regions. The floor of her mouth was bruised, and she was able to open her mouth to a distance of only 2 cm. Most significantly, scans of the victim's jaw showed a bilateral fracture. 14The victim underwent surgery in the course of which her lower left wisdom tooth was removed, and titanium plates were inserted to stabilise the fractures of her jaw. At ROS 4, there was reference to the necessity to insert three such plates for that purpose, although there is a subsequent reference (again at ROS 4) to the insertion of two such plates. Irrespective of which is correct, the victim's injuries were obviously serious. 15The titanium plates which were inserted in the course of surgery remain in place. The victim gave evidence at the trial of the pain and discomfort from which she continued to suffer as a consequence of her injuries.

THE RESPONDENT'S SUBJECTIVE CASE 16The respondent was aged 19 at the time of the offending, and 21 at the time of sentence. 17A report of Helen J Carney, psychologist, was tendered in the respondent's case on sentence. Ms Carney reported that the respondent was educated to Year 10 and had become increasingly dependent on drugs, which had resulted in the commission of various criminal offences. She took a history which included the respondent having commenced to use alcohol and cannabis as a teenager, following which he commenced to use the drug commonly known as "ice". Ms Carney noted that although the respondent had the benefit of counselling and supervision by Juvenile Justice, this was rendered ineffective as a consequence of the continuation of his drug habit. 18Psychological testing administered by Ms Carney produced results which were generally within the normal range and which did not evidence any depression or significant psychological problems. Ms Carney recommended that the respondent undergo an intensive rehabilitation program with a view to obtaining some proper insight into his drug addiction. 19A report of Dr Olav Nielssen, psychiatrist, was also tendered in the respondent's case on sentence. Dr Nielssen similarly recorded a history of substance abuse. In respect of the respondent's account of the offence, he reported: "He said that he did not know the woman who was assaulted or have any reason to assault her. When asked if it was possible he did not remember committing the offence, he said "that might be a possibility". " 20Ultimately, Dr Nielssen diagnosed a substance dependence and abuse disorder, and a substance induced psychosis. He concluded that each was in remission. He did not consider that the respondent was suffering from any major psychiatric disorder for which he required specific treatment. He thought that the respondent had "some" prospects of rehabilitation based on his employment history and his recognition of the harmful effect of substance abuse, and recommended close supervision on release.

THE RESPONDENT'S CRIMINAL HISTORY 21The respondent's criminal history which was tendered on sentence recorded appearances before the Children's Court dating back to April 2008 for numerous offences involving violence. 22Significantly, the respondent's history also included an appearance before the District Court at Griffith on 27 November 2009, following his being found guilty by a jury of an offence of wounding with intent to do grievous bodily harm, also an offence contrary to s. 33. The circumstances of that offending, in short, were that whilst he was on bail in respect of other offences of violence, the respondent struck a victim over the head with a heavy bottle on two occasions, the second of which caused the bottle to smash. 23The sentencing judge (whose remarks were before the sentencing judge in the present case and are also before this Court) noted that the respondent had struck the victim "for no reason at all". He described the respondent as having an "attitudinal problem and an anger management problem", and described the offending as constituting "gratuitous ..... (and) random unexplained violence". Such descriptions are equally apposite to the respondent's offending in the present case. 24On that occasion, the respondent was sentenced to a total term of imprisonment of 4 years, comprising a non-parole period of 2 years and an additional term of two years. The respondent was on parole in respect of that matter when the present offending occurred.

THE GROUND OF APPEAL 25By notice dated 2 September 2013 the Director of Public Prosecutions has advanced a single ground of appeal, namely that the sentence imposed was manifestly inadequate.

THE FINDINGS OF THE SENTENCING JUDGE 26Having outlined the circumstances of the offending, his Honour described it (at ROS 3) as: "An entirely gratuitous and vicious assault in which the victim's jaw was broken in two places". 27His Honour went on to say (at ROS 5): "This offence is a serious one both inherently given the important statutory guideposts constituted by the maximum penalty which is a significant one and the further guidepost in a standard non-parole period. It is also rendered more serious having regard to the gratuitous nature of the offence committed against an entirely innocent young victim who has offered no shadow of reason for the offender to have attacked her in a manner that may be justifiably described as utterly vicious. The matter is aggravated by the fact that the offender was at (sic) conditional liberty, having been released to parole for a similar offence only three and a half months before. If (sic) it is the case, as has been submitted to me by counsel for the offender, that it is indeed possible for there to be more significant manifestations of grievous bodily harm, and indeed such instances are not uncommon before the court. However, it suffices to say it is no trivial matter that a young female victim is left with two surgically emplaced plates in her jaw and has to suffer recurrent discomfort and occasional pain for an at least indefinite period." 28In terms of the respondent's contrition and remorse, his Honour said (at ROS 5): "He had offered police what was obviously a completely a false account of the matters that brought him before the court; that was a matter for him but it renders no indication of contrition. He has offered no real explanation in my view for his behaviour ever since." 29His Honour specifically rejected (at ROS 6) a submission that he should infer that the respondent was intoxicated at the time of his offending and said: "... As to this the state of the evidence would justify nothing beyond a scant suspicion that perhaps only drunkedness (sic) could explain this outburst of violent anger. In any event, the state of the evidence is not beneficial so far as the conclusions I reach or indeed am able to reach in this regard. It is the case that the offender most certainly has a significant history of violence, specifically including prior conduct of a similar kind and in circumstances giving rise to an earlier trial, conviction and imprisonment." 30Having made reference to the respondent's apparent problem with substance abuse and anger management, his Honour continued (at ROS 6): "The only related matter that is clear in the present instance is that for some unexplained reason there was anger within the offender and that this erupted on this occasion without warning, and was turned upon the utterly unsuspecting victim." 31His Honour then referred (at ROS 7) to the observations of the sentencing judge who sentenced the respondent in 2009. He regarded those remarks as having a "particular and regrettable residence (sic) in the context of the present no less shameful attack upon a particularly unsuspecting victim", and thought that they served to "illuminate the offender's criminal history in more detail than is normally available on a simple examination of the record of criminal convictions". 32His Honour concluded (at ROS 7) that any claims for leniency in the present case were "near to non-existent". In terms of the respondent's prospects of rehabilitation, he concluded (at ROS 7) that there was a "flicker of encouragement" arising from the respondent's general acceptance of the need to address his illicit drug use, although he also concluded (at ROS 8) that there was no link between such drug use and the present offending. His Honour also found (at ROS 8) that there was "some slight encouragement" arising from the fact that the respondent had expressed some ambition to be in full time employment and had taken the opportunity whilst in custody to enrol in rehabilitation-related courses. He concluded that such matters were "positive signs of (the respondent's) adaptation to prison discipline" and "indicative of some capacity for rehabilitation". 33In determining the appropriate sentence, his Honour made specific reference to what he described (at ROS 9) as "the obvious need for specific deterrence" as well as the need for "the general deterrence of persons who for any reason engage in serious offending of this kind". He went on to say (at ROS 9): "Whatever the offender's real reason for this offence there must be consideration of the protection of the community in the formulation of an appropriate sentence. The principal source of moderation, if there be any, in sentence in this matter is a slight one. It is a proper regard to the factor of the offender's youth". 34It is appropriate to note that when the sentencing remarks are read as a whole, the sole mitigating factor found by his Honour was that of the respondent's youth. Even then, his Honour described the weight of that consideration as "slight". 35His Honour then concluded that it was appropriate to vary the ratio between the non-parole period and the overall sentence to take into account what he saw as a need for a longer period of supervision to address the underlying issue of anger management. Finally, and immediately prior to imposing sentence, his Honour said (at ROS 10): "... this case raises an important matter of general deterrence. It lies in this: young persons are encouraged when out and about at night, engaged in their own lawful and innocent pursuits, to use public transport and to be told that they can move about our city and its suburbs with some confidence; this being hopefully a civilised and safe community. Unfortunately, it is a common occurrence that young people so engaged increasingly fall victim to other young people engaging in acts of violence. A young woman should be entitled to wait on a bus stop with her friends without fear of some individual approaching and inflicting upon her any injury, let alone a serious one as was the case here. Those concerns are to be expressed in balance with the other matters upon which the distillation of a sentence is to be arrived upon. That it happens to be a matter of contemporary concern does not suggest that it should be given undue weight, but certainly general deterrence embodying the protection of the community is an important feature in an offence of this nature." 36His Honour then proceeded to impose the sentence set out in [4] above.

The submissions of the Crown 37The Crown acknowledged that a claim of manifest inadequacy requires this Court to be satisfied that the sentence imposed at first instance was unreasonable or plainly unjust (see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 370 - 371; [25]). 38The Crown pointed to the findings reached by his Honour which I have summarised above, and to the fact that his Honour had expressly acknowledged (at ROS 9) that a sentence for this offence was informed by the maximum penalty of 25 years imprisonment and the standard non-parole period of 7 years, which he described as "two potent guide posts of seriousness". The Crown also pointed to his Honour's various findings as to the objective seriousness of the offence, and the absence of any significant mitigating factors, as well as to the fact that the sentence imposed was substantially below one of the statutory guideposts to which his Honour had expressly referred, namely the standard non-parole period. 39Against this background, the Crown submitted that the sentence imposed was not reflective of the findings that his Honour had reached and that the only available conclusion was that the sentencing discretion had miscarried, leading to the imposition of a sentence which was, in all of the circumstances, manifestly inadequate.

The submissions of the respondent 40It was submitted on behalf of the respondent that the sentencing judge had proper regard to the objective seriousness of the offence along with the standard non-parole period and the maximum penalty. It was further submitted that the sentencing judge had obviously taken into account that the respondent was on parole at the time. 41Counsel for the respondent also emphasised the submissions which had been made to the sentencing judge regarding the unplanned and impulsive nature of the offending. He submitted that although there was no express reference to such matters in his Honour's sentencing remarks, it was apparent that the offending fell into that category and that it was to be assumed that such submissions had been accepted by his Honour, and that they played a part in his assessment of the appropriate sentence. 42Counsel also drew attention to his Honour's specific reference to the respondent's youth, and submitted that in all of the circumstances it was open to his Honour, in the exercise of his sentencing discretion, to sentence the respondent as he did. It was further submitted that although it was not a matter to which any specific reference was made, the sentencing judge was obviously mindful of the fact that having regard to the sentence imposed in 2009, the imposition of any further substantial sentence would necessarily result in the respondent having to spend a long, and effectively continuous, period in custody. It was submitted that although not expressly stated, the sentence which was ultimately imposed represented the sentencing judge's recognition of the need to ensure that the sentence imposed was not a crushing one, having regard to the respondent's relative youth. 43In written submissions, counsel sought to draw factual comparisons between the respondent's case and two other cases considered by this Court, namely Ramea v R [2013] NSWCCA 310 and Duncombe v R [2003] NSWCCA 27. Counsel initially submitted that these two cases were "similar in some respects" to that of the respondent, and that they supported the conclusion that the sentence imposed was not manifestly inadequate. In oral submissions counsel refined this position to some degree, and principally relied upon those decisions as demonstrative of the wide range of offending which is caught by s. 33(1). 44Finally, counsel for the respondent relied on the well established principles concerning the restrictions and restraint to be applied by the Court in determining a Crown appeal (as to which seen generally Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462).

CONSIDERATION Is the sentence imposed manifestly inadequate? 45The Crown has relied upon a single ground of appeal, namely that the sentence which was imposed is manifestly inadequate. In circumstances where the Crown has submitted that the sentencing discretion has miscarried absent specific error, it must establish that the sentence was unreasonable or plainly unjust (see Markarian (supra)). 46It is important to note at the outset that neither party took issue with any of the conclusions of the sentencing judge. Those conclusions may be summarised as follows: (i)the assault was: (a)a gratuitously violent one which inflicted serious injury upon the victim; (b)completely without justification or explanation; and (c)perpetrated upon a young woman, who was simply minding her own business at a bus stop in the early hours of the morning; (ii)the respondent had a history of violent offending, having been sentenced to a term of imprisonment in 2009 for similar offending; (iii)the respondent was released on parole in respect of the offence in (ii) above only three and a half months before the present offending; (iv)there was an obvious need for both personal and general deterrence in determining the appropriate sentence; (v)there was a complete absence of contrition on the part of the respondent; (vi)having gone to trial, the respondent was not entitled to any discount on sentence on account of a plea of guilty; (vii)the circumstances did not permit a positive finding that the respondent had good prospects of rehabilitation, or that he was unlikely to re-offend; (viii)the sole mitigating factor was the respondent's youth which was of minimal weight 47In my view, there is a significant and irreconcilable displacement between these circumstances and the sentence which his Honour imposed. I am left to conclude that the sentencing discretion miscarried, leading to the imposition of a sentence which, in all of the circumstances, was manifestly inadequate. 48The maximum sentence of 25 years' imprisonment which is applicable to an offence against s. 33 is the highest maximum penalty prescribed by the legislature, short of life imprisonment. It serves as an indication of the seriousness with which such an offence is to be regarded (see AM v R [2012] NSWCCA 203 per Johnson J at [67] - [68], McClellan CJ at CL and Garling J concurring, citing R v Zhang [2004] NSWCCA 358). The seriousness of such an offence is also emphasised by the intention which is required to commit it, namely the intention to cause grievous bodily harm, which is the mental element for murder in the event that the victim dies. It is that mental element that makes an offender liable to the maximum penalty of 25 years imprisonment (see R v Zamagias [2002] NSWCCA 17 at [11] per Howie J). 49Moreover, the legislature has prescribed a standard non-parole period of 7 years imprisonment for such offence. In R v Nguyen [2013] NSWCCA 195, this Court (Beazley P, Johnson and R A Hulme JJ) observed (at [63]) that the standard non-parole period may be a more significant factor on sentence where (as here) there is little operating in an offender's favour. Whilst adopting a two stage approach to the respondent's sentence would have been an error (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120) it is not possible to discern from his Honour's findings the reason(s) which led him to impose a sentence which was substantially below one of the guideposts to which he expressly referred (see Nguyen (supra) at [68]. 50I accept the submission of counsel for the respondent that s. 33 can cover a broad range of offending. However in AM (supra) Johnson J (commencing at [71]) reviewed the authorities concerning the considerations which are relevant when sentencing for an offence against that provision. A number of factors identified by his Honour are of significance in the present case. They include: (i)the degree of violence and the ferocity of the attack (see R v Zhang [2004] NSWCCA 358); (ii)the fact that it was unprovoked (see Matzick v R [2007] NSWCCA 92); and (iii)the fact that it was perpetrated upon an innocent citizen who was going about her ordinary business (see R v Woods CCA (NSW) 9 October 1990 unreported; ). 51In the present case, the degree of violence and the ferocity of the attack were substantial, as evidenced by (inter alia) the injuries sustained by the victim. The respondent had a history of similar offending, and was in fact on parole for such offending at the time of the commission of this offence. Further there was an almost complete absence of any mitigating factors. All of those matters mandated the imposition of a sentence substantially higher than that which his Honour imposed. 52Further, the victim in the present case had a legitimate expectation that she would be able to go about her business safely and securely. There was, as his Honour pointed out, a resultant need for any sentence to reflect principles of general deterrence. In my view, the sentence imposed falls well short of properly addressing that issue. In all of the circumstances, it provides no deterrent at all. 53I have noted that the respondent sought to rely, for comparative purposes, on the decisions in this Court in Ramea (supra) and Duncombe (supra). Because the facts of cases obviously differ, there is a need to carefully consider the entirety of the circumstances which resulted in a particular sentence being imposed before relying upon such a sentence for comparative purposes (see RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing); see also Han v R [2009] NSWCCA 300 per Campbell JA at [2] and Rothman J at [34]; and R v Hili; R v Jones [2010] HCA 45; 242 CLR 520 at [53]-[56]). In the present case, as is so often the situation, an examination of the authorities upon which counsel relied demonstrated the presence of a variety of factors which served to differentiate such cases from that of the respondent, rendering any comparison of no real assistance. Quite apart from differing subjective features, the applicant in each of those cases had entered a plea of guilty. 54It may well be, as counsel for the respondent submitted, that the sentencing judge was mindful of the need to impose a sentence which was not crushing in the sense described by this Court in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164; [17]: " ... an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there maybe of rehabilitation and reform." 55Equally however, an assessment of whether or not a sentence is properly described as crushing must have regard to a number of circumstances. Those circumstances include the maximum penalty, any standard non-parole period, and the objective and subjective factors (see Paxton v R [2011] NSWCCA 242 esp. at [215] per Johnson J with whom Tobias AJA and Hall J agreed). In the present case all of those factors pointed toward the imposition of a sentence substantially greater than that which his Honour imposed. 56Finally, and quite apart from the manifest inadequacy of the sentence itself, the sentencing judge found special circumstances (at ROS 11) and adjusted the ratio between the non-parole period and the balance of the term (see Crimes (Sentencing Procedure Act) 2002 s. 44(2B). In the end result, the non-parole period imposed constituted 60% of the total sentence. As I have already noted, his Honour found (at ROS 8) that there were some positive signs of the respondent's adaptation to prison discipline. With expressed caution, he saw those signs as being indicative of "some capacity for rehabilitation". 57Circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]). In my view, the evidence before his Honour fell substantially short of satisfying that requirement.

Re-sentencing 58The Court retains a residual discretion to dismiss the appeal, even if it comes to the view that the sentence imposed was manifestly inadequate (see Green (supra) at 471; [26] per French CJ, Crennan and Kiefel JJ; at 506; [131] per Bell J). However there are no factors in the present case which serve to persuade me that such discretion should be exercised. For all of the reasons I have given, a substantially greater sentence is warranted.

ORDERS 59I propose the following orders: (i)the Crown appeal is allowed; (ii)the sentence imposed by his Honour Judge Craigie SC on 7 August 2013 is quashed; (iii)in lieu thereof, the respondent is sentenced to a non-parole period of 5 years imprisonment commencing on 3 September 2012 and expiring on 2 September 2017, with an additional term of one year and eight months imprisonment, commencing on 3 September 2017 and expiring on 2 May 2019; (iv)the total sentence is one of 6 years and 8 months imprisonment; (v)the respondent will be eligible for release on parole on 2 September 2017; (vi)the total term of imprisonment will expire on 2 May 2019.

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: 03 April 2014

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