Commonwealth Director of Public Prosecutions v Sadrata (No 2)
[2024] NFSC 3
•3 June 2024
SUPREME COURT OF NORFOLK ISLAND
Commonwealth Director of Public Prosecutions v Sadrata (No 2) [2024] NFSC 3
File number(s): SCC 1 of 2023 Judgment of: WIGNEY J Date of judgment: 3 June 2024 Date of publication of reasons: 5 June 2024 Catchwords: CRIMINAL LAW – where offender pleaded guilty to four counts of assault occasioning actual bodily harm contrary to s 82(1) of the Criminal Code 2007 (NI) – offences committed on Norfolk Island
CRIMINAL LAW – sentence – whether comparable cases establish ‘correct range’ of sentences – whether desirable in all the circumstances to suspend sentence pursuant to s 39 of the Sentencing Act 2007 (NI)
Legislation: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 11, 12(2), 39
Criminal Code 2007 (NI) s 82(1)
Sentencing Act 2007 (NI) s 5, 39
Cases cited: Patsan v R [2018] NSWCCA 129
R v MCW [2019] 2 Qd R 334; [2018] QCA 241
R v MDB [2018] QCA 283
R v RAP (2014) 244 A Crim R 447; [2014] QCA 228
The Queen v Christian (No. 2) [2018] NFSC 4
The Queen v Christian [2020] NFSC 1
Number of paragraphs: 52 Date of hearing: 3 June 2024 Counsel for the Prosecutor: Mr C Reid Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the Offender: Mr P Rowe Solicitor for the Offender: Mr J Brown of McIntyres Lawyers ORDERS
SCC 1 of 2023 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
AND: EMOSI SADRATA
Offender
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1.The offender, Mr Emosi Sadrata, is convicted of the four (4) counts of assault occasioning actual bodily harm contrary to section 82(1) of Criminal Code 2007 (NI) in the indictment dated 18 December 2023.
2.In respect of each of those offences, the offender, Mr Emosi Sadrata, is sentenced to a term of imprisonment for fifteen (15) months commencing on 3 June 2023.
3.The sentences of imprisonment in respect of each of the offences be served concurrently.
4.Pursuant to section 39(1) of the Sentencing Act 2007 (NI), the execution of the sentences of imprisonment be wholly suspended for a period of fifteen (15) months from 3 June 2024, subject to the following conditions:
(a)The offender, Mr Emosi Sadrata, submit to the supervision of Community Corrections NSW and obey all reasonable directions;
(b)The offender, Mr Emosi Sadrata, report to the Bankstown Community Corrections NSW office within seven (7) days;
(c)The offender, Mr Emosi Sadrata, continue to consult with Ms Dee-Anne James, psychologist, on at least a monthly basis; and
(d)The offender, Mr Emosi Sadrata, complete the Taking Responsibility program with Relationships Australia or such similar or equivalent program as may be provided by Relationships Australia or recommended by Ms Dee-Anne James.
5.Pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as it applies in Norfolk Island, for a period of twenty-four (24) months:
(a)The offender, Mr Emosi Sadrata, must not do any of the following to the protected person, Ms Sophie O’Connor, or anyone with whom she has a domestic relationship with:
(i)assault or threaten them;
(ii)stalk, harass or intimidate them; and
(iii)intentionally or recklessly destroy or damage property that belongs to, or is in the possession of, them.
(b)The offender, Mr Emosi Sadrata, must not approach the protected person, Ms Sophie O’Connor, or contact her in any way unless the contact is:
(i)through a lawyer;
(ii)to attend accredited or court-approved counselling, mediation or conciliation;
(iii)as ordered by this, or another, court about contact with children; and
(iv)as agreed in writing between the defendant and Ms Sophie O’Connor about contact with children.
THE COURT DIRECTS THAT:
6.Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as it applies in Norfolk Island, the offences committed by the offender, Mr Emosi Sadrata, be recorded on his criminal record as domestic violence offences.
REASONS FOR JUDGMENT
(Revised from transcript)WIGNEY J:
The offender, Mr Emosi Sadrata, has pleaded guilty to four charges of assault occasioning actual bodily harm, contrary to s 82(1) of the Criminal Code 2007 (NI). Each of the assaults were committed against Mr Sadrata’s de facto partner, Ms Sophie O’Connor. The task for the Court is to pass a sentence on Mr Sadrata in respect of each of the offences and give a direction, or make orders, where appropriate, under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as it applies to Norfolk Island.
The facts upon which the offender is to be sentenced
The facts upon which Mr Sadrata is to be sentenced are set out in a detailed statement of facts tendered by the prosecutor without objection.
The offences were committed on the evening of 5 June 2021 and in the early hours of 6 June 2021. At that time, Mr Sadrata was 45 years’ old and Ms O’Connor was 31 years’ old. They had been in a domestic relationship for a number of years, and were, at that point in time, residing on Norfolk Island. They had two young children: a daughter aged 15 months, and a son aged three years. Ms O’Connor also had a son aged 11 years from an earlier relationship, and Mr Sadrata had adult daughters, also from an earlier relationship.
On the evening of the 5 June 2021, Mr Sadrata and Ms O’Connor were at their home together with their 15 months’ old daughter. The other children were staying the night at the homes of other family members. Both Mr Sadrata and Ms O’Connor consumed alcohol. During the course of the evening Mr Sadrata became heavily intoxicated.
Mr Sadrata and Ms O’Connor retired to bed at about 9.30pm. Shortly thereafter they had an argument which arose because Mr Sadrata wanted to have sexual intercourse and Ms O’Connor did not. When Mr Sadrata raised his voice in the course of that argument, the couple’s daughter awoke. Ms O’Connor went to the room where her daughter was sleeping to settle her. She in due course fell asleep in that room. At about midnight, however, Mr Sadrata went into the room where Ms O’Connor was sleeping. It was at that point in time when the offences occurred.
Mr Sadrata’s assaults on Ms O’Connor were violent, entirely unprovoked, prolonged, and demeaning. The precise nature of the assaults is detailed in the statement of facts. They may be summarised as follows.
Mr Sadrata first punched Ms O’Connor in the face with a closed fist, causing Ms O’Connor pain and, in due course, a black eye. That assault is the subject of the first charge.
Mr Sadrata then grabbed Ms O’Connor by the hair and dragged her to their bedroom where he hit and kicked her to the face, back of the head, arms, buttocks, thigh, and stomach. That assault is the subject of the second charge.
At that stage, Ms O’Connor was lying on the floor. Mr Sadrata then grabbed Ms O’Connor around the neck and throat and picked her up from the floor by her neck so they were face to face. He then lifted her off the ground and threw her towards the bed. That assault is the subject of the third charge.
Mr Sadrata then moved Ms O’Connor onto the bed and struck her. He then told Ms O’Connor to stand up and struck her again, causing her pain and bruising to the upper and lower back. While Ms O’Connor was crouched on the floor, Mr Sadrata kicked and punched her in the stomach, vagina, and buttocks, all the while saying to her words to the effect that he would make sure that she would not be able to have another baby. That assault is the subject of the fourth charge.
Eventually, Ms O’Connor was able to flee the house and seek refuge in a neighbour’s house. The police were called, and Ms O’Connor was transported to a facility on Norfolk Island for medical treatment. Mr Sadrata was in due course arrested. He was, however, so intoxicated that he was unable to be interviewed by the police that evening.
As a result of the assaults, Ms O’Connor suffered a black eye, bruising to her arms, legs and buttocks, swelling to the back of the head and neck, a sore wrist, and tenderness to the back and stomach. The prosecutor tendered photographs which graphically evidence those injuries. Ms O’Connor’s injuries were not, however, limited to those physical injuries. The assaults were, no doubt, emotionally and psychologically distressing.
There could be no doubt whatsoever that these were very serious offences.
Impact on the victim, Ms O’Connor
Ms O’Connor prepared, and read, a victim impact statement which described the physical, psychological, and emotional effect that Mr Sadrata’s assaults had had on her. It took some bravery for Ms O’Connor to read that victim impact statement. It was evident that Mr Sadrata’s offending conduct had had a profound and lasting impact on her. I take the harm and ongoing impact on Ms O’Connor arising from the offences into account in sentencing Mr Sadrata.
Relevant sentencing prinicples
The purposes for which sentences are to be imposed on an offender are described in s 5(1) of the Sentencing Act 2007 (NI). They are, in summary: to punish the offender in a way that is just in all the circumstances; to provide conditions that will help the offender to rehabilitate; to discourage the offender and others from committing the same or similar offences; to make it clear that the community, through the court, does not approve the offending conduct; and to protect the Norfolk Island community.
Section 5(2) of the Sentencing Act sets out a number of factors that the court must, where relevant, have regard to in sentencing an offender. The factors of particular relevance to this case include, in summary: the maximum penalty for the offences; the nature and seriousness of the offending conduct; the damage, injury or loss caused by the offender; the offender’s character and age; the presence of any aggravating or mitigating factors concerning the offender; the prevalence of the offence; and whether the offender pleaded guilty and at what stage of the proceedings.
The nature and seriousness of the offences and other objective circumstances
As I have already indicated, there could be no doubt that the offences committed by Mr Sadrata were very serious offences.
The seriousness of the offences is reflected in the maximum penalty provided for them in the Criminal Code, which is five years’ imprisonment.
Mr Sadrata’s offending conduct was particularly serious because it involved acts of violence towards his domestic partner in their home, that being a place which Ms O’Connor was entitled to regard as a safe haven. There is ample authority, if authority were indeed needed, for the proposition that domestic violence offences are, and should be, viewed as serious offences which warrant strong denunciation and condign sentences. As I have already made clear, the acts of violence perpetrated by Mr Sadrata on Ms O’Connor were entirely unprovoked, shameful, prolonged, and demeaning, and caused her physical pain and injury as well as psychological and emotional trauma. The nature and circumstances of the offences are such as to compel sentences that will have a strong deterrent effect, both on Mr Sadrata and others who might commit similar offences. They also warrant strong denunciation by this Court.
The prosecutor submitted that there was a need for the sentences imposed on Mr Sadrata to provide protection for the Norfolk Island community. While I accept that protection of the community is a relevant consideration, for reasons I will elaborate on shortly, I do not consider that to be a particularly weighty consideration in the circumstances of this case. I also consider that the protection of the community is best achieved in the particular circumstances of this case by sentences that will secure Mr Sadrata’s rehabilitation.
Mr Sadrata’s personal circumstances
Mr Sadrata gave evidence. The following short summary of his personal circumstances is taken from that evidence and to some extent from a report prepared by a psychologist on Norfolk Island, Ms Dee-Anne James, which was tendered by Mr Sadrata.
As I have already indicated, Mr Sadrata was 45 years’ old at the time the offences were committed. He is now 48 years’ old. He is of Fijian heritage and has lived in Australia for about 13 years. He took Australian citizenship in about 2015. When he first arrived in Australia, he resided in Norfolk Island for about seven years. It was then that he met Ms O’Connor.
Mr Sadrata and Ms O’Connor resided on Norfolk Island for a period of time, but at one point relocated to Sydney where they resided for a short time. They subsequently returned to Norfolk Island, mainly because Ms O’Connor wanted to be with her family.
Mr Sadrata left Norfolk Island shortly after he committed the offences. His evidence was that he decided to leave the island in part because he was embarrassed and disgusted at his behaviour. He also said that Ms O’Connor’s father had suggested that it would be better if he left the island.
Mr Sadrata is currently gainfully employed at an organisation called Cat5 Rail as a welder offsider and rail labourer. He previously worked in Sydney for DHL. His current position requires him to travel to Port Hedland in the north of Western Australia for five out of every six weeks. He is currently earning about $1,800 per week, after tax.
Mr Sadrata has, whilst employed, provided some financial assistance to Ms O’Connor for the care and support of their children. Initially, he endeavoured to send $150 per week. However, when he commenced his present employment, he endeavoured to send $300 per week. He candidly acknowledged that, on some occasions, he was unable to send those full amounts. He has also provided financial support in respect of his children when particular needs arose. He referred to providing $1,000 for a particular need. While the prosecutor suggested that these were relatively small amounts of money given Mr Sadrata’s wages, that tends to ignore other commitments that he might have. He indicated, for example, that he sent money back to his family in Fiji. I am satisfied that Mr Sadrata has fairly contributed to the support of his children.
While residing in Sydney, Mr Sadrata has remained in contact with his children, primarily by way of a telephone call or other electronic contact on a Sunday night, as permitted by his bail conditions and by arrangement with Ms O’Connor. He has returned to Norfolk Island on two occasions in the period since the commission of the offences; on one occasion to attend the Court; and, on another occasion, for a weekend. He had some contact with his children during those visits by arrangement with Ms O’Connor.
Mr Sadrata is genuinely remorseful, contrite, embarrassed, and disgusted by his offending behaviour. That was the effect of his evidence and was readily apparent from his demeanour when giving evidence. Mr Sadrata’s evidence was that at one point he was so affected by his offending conduct that he considered suicide. Fortunately, he sought intervention by a doctor and began taking some medication. He also spoke with a pastor on Norfolk Island. As has already been adverted to, Mr Sadrata also sought counselling and guidance from a psychologist on Norfolk Island, Ms James. I will say something more about Ms James’ report shortly.
Importantly, Mr Sadrata has indicated that since the offending conduct, he has ceased drinking alcohol. As indicated previously, he was very intoxicated at the time of committing the offences. His intoxication may provided some explanation for his offending conduct, which appeared, on the basis of the evidence before the Court, to be out of character.
Mitigating circumstances
Despite the very serious nature of the offences and offending conduct by Mr Sadrata, there are a number of mitigating factors, mainly arising from Mr Sadrata’s personal circumstances. Those factors compel a degree of leniency in sentencing Mr Sadrata. I have already briefly adverted to some of those factors.
First, save for one relatively minor offence of driving while his licence was suspended, Mr Sadrata has no prior convictions. The prosecutor fairly conceded that the prior conviction was essentially irrelevant.
Second, Mr Sadrata pleaded guilty to the offences at a relatively early stage. He initially pleaded guilty to six offences but was later permitted to withdraw those pleas. It was, however, made clear that Mr Sadrata only took issue with one of the original charges. After discussions with the prosecutor, that charge was not pursued, and Mr Sadrata pleaded guilty to the current offences.
Third, as I have already indicated, I am satisfied that Mr Sadrata is genuinely contrite and remorseful. That is readily apparent his early pleas of guilty, his own evidence, and Ms James’ report.
Fourth, and particularly significantly, Mr Sadrata has taken very positive steps to rehabilitate himself. As I have already indicated, he has sought treatment from Ms James. He sought that treatment almost immediately after he was arrested and charged, and has regularly consulted Ms James, either in person or electronically, ever since, save for a gap in 2023. In his evidence, he indicated that he would continue to seek Ms James’ counsel. It is also of some considerable significance that Mr Sadrata no longer consumes alcohol. In her report, Ms James expressed very positive opinions concerning Mr Sadrata’s rehabilitation.
Fifth, over three years have passed since the offences were committed. As already noted, Mr Sadrata has, on occasion, been able to return to Norfolk Island and has visited his children. He also, no doubt, had some engagement with Ms O’Connor in that context. Those encounters have occurred without any incident.
I am, in all the circumstances, satisfied that the prospect or risk of Mr Sadrata re-offending is very low and the prospects of his further rehabilitation are very high.
Comparable cases
The prosecutor submitted that the nature and seriousness of Mr Sadrata’s offences were such that the only appropriate sentence was one that involved Mr Sadrata serving a term of “actual imprisonment”. In that context, the prosecutor drew the Court’s attention to what were said to be ‘comparable’ cases where sentences of imprisonment were imposed for domestic violence offences. Those cases included R v RAP (2014) 244 A Crim R 447; [2014] QCA 228; Patsan v R [2018] NSWCCA 129; R v MCW [2019] 2 Qd R 334; [2018] QCA 241; and R v MDB [2018] QCA 283.
Each of those cases emphasise the seriousness with which sentencing courts view domestic violence offences. As I’ve already indicated, that proposition could scarcely be doubted. Save for establishing that proposition concerning the seriousness of domestic violence offences, the comparable cases provide little real assistance in determining the appropriate sentence in this particular case. That is because they are not truly comparable, in the sense that they involve like circumstances. Rather, they have several features, including in relation to the seriousness of the offences and the offender’s subjective circumstances, which distinguish them from Mr Sadrata’s case. Perhaps the closest case, in terms of the nature of the offences, was the case of R v RAP. Even in that case, however, the nature of the assaults and the injuries caused by them were more severe than is the case with Mr Sadrata’s offending.
While there is obviously a need for consistency in sentencing, consistency in sentencing is best secured by the application of established sentencing principles, rather than strictly following what may have been done in other cases, particularly cases which are not truly comparable: see the observations in The Queen v Christian (No. 2) [2018] NFSC 4 at [116]-[117], and The Queen v Christian [2020] NFSC 1 at [133].
The appropriate sentences
I accept that the nature and circumstances of Mr Sadrata’s offences and offending conduct is such that sentences of imprisonment are called for, even having regard to the mitigating circumstances to which I have referred. Mr Sadrata, through his counsel effectively conceded as much.
I am, however, satisfied that it is desirable in the circumstances of this case to order that the sentences of imprisonment be wholly suspended pursuant to s 39 of the Sentencing Act. The suspension should be subject to some conditions. I will address those conditions shortly. The circumstances which have persuaded me that suspended sentences are desirable are primarily the mitigating circumstances to which I have referred: Mr Sadrata’s prior good character; his contrition and remorse; his early pleas of guilty; his commendable and effective steps towards rehabilitation; and what I consider to be the very low risk of him re-offending. I consider that suspending the sentences is almost certainly likely to assist Mr Sadrata’s ongoing rehabilitation. That would not only be to his benefit, but also the benefit of his children and the community generally.
It is necessary for me to impose sentences in respect of each of the offences. The prosecutor conceded that it would, in all the circumstances, be appropriate for the sentences to be served concurrently. That was a fair concession given that it is readily apparent that while there were four distinct assaults, they all arose from a single course of conduct. It is appropriate in those circumstances to ensure that the total aggregate sentence to be imposed is not excessive as a result of the accumulation of the sentences.
The term of imprisonment that I consider appropriate in respect of each of the offences is imprisonment for a period of 15 months. That term of imprisonment incorporates a 25% discount arising from Mr Sadrata’s early pleas of guilty.
As already indicated, each of those sentences is to be served concurrently. The overall effective term of imprisonment is accordingly a sentence of 15 months’ imprisonment.
As already noted, I will make an order pursuant to s 39 of the Sentencing Act suspending the whole of the sentence. The date of the order for the purposes of s 39(6)(a) of the Sentencing Act is 3 June 2024. The suspension order will operate for 15 months from that date.
I am satisfied that an effective sentence of imprisonment of 15 months, if unsuspended, would be appropriate in the circumstances having regard to the Sentencing Act: see s 39(3) of the Sentencing Act.
The suspension order will be subject to following conditions:
(a)The offender, Mr Emosi Sadrata, submit to the supervision of Community Corrections NSW and obey all reasonable directions;
(b)The offender, Mr Emosi Sadrata, report to the Bankstown Community Corrections NSW office within seven (7) days;
(c)The offender, Mr Emosi Sadrata, continue to consult with Ms Dee-Anne James, psychologist, on at least a monthly basis; and
(d)The offender, Mr Emosi Sadrata, complete the Taking Responsibility program with Relationships Australia or such similar or equivalent program as may be provided by Relationships Australia or recommended by Ms Dee-Anne James.
I should hasten to add that, in determining that it is appropriate to suspend the sentences of imprisonment, I have applied the principles I identified in the judgment in Christian at [77]-[83]. While a suspended sentence does involve some degree of leniency, a sentence of imprisonment can be a significant and effective punishment, even where execution of the sentence is suspended. In my view, a suspended sentence in Mr Sadrata’s case is an effective punishment which will not only serve as a deterrent, but will promote and assist Mr Sadrata’s rehabilitation and, in that way, provide effective protection for the Norfolk Island community.
Earlier in these reasons, I adverted to the need to consider whether to make a direction and an order pursuant to the Crimes (Domestic and Personal Violence) Act. Section 12(2) of that Act provides as follows:
If a person pleads guilty to an offence or is found guilty of an offence and the court is satisfied that the offence was a domestic violence offence, the court is to direct that the offence be recorded on the person’s criminal record as a domestic violence offence.
I am satisfied that the offences committed by Mr Sadrata are domestic violence offences: see ss 5 and 11 of the Crimes (Domestic and Personal Violence) Act. I will therefore direct that the offences committed by Mr Sadrata be recorded on his criminal record as domestic violence offences.
Section 39 of the Crimes (Domestic and Personal Violence) Act provides, in summary, that where a person pleads guilty to, or is found guilty of, a serious offence, the court must make a final apprehended violence order for the protection of the person against whom the offence was committed. The court need not make such an order if it is satisfied that it is not required.
While I consider that the risk or prospect of Mr Sadrata reoffending is very low, I nevertheless, consider, perhaps for more abundant caution, that it is appropriate to make a final apprehended violence order for the purposes of s 39 of the Crimes (Domestic and Personal Violence) Act. I will therefore make such an order in the terms effectively agreed as between the prosecutor and Mr Sadrata’s counsel. That order will operate for two years. I will also explain the effect and operation of that order to Mr Sadrata.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 5 June 2024
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