Director of Public Prosecutions v Atelemo
[2014] VCC 658
•29 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-13-00805
CR-13-00806
CR-13-00807
CR-13-00808
CR-13-00813
CR-13-00814
CR-13-00815
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Sim ATELEMO-TUIAFITU Junior TAUPATI Suliana ATELEMO Lance TUFUGA Messine TOGI Frances TUFUGA Anne PULEANGA |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 11, 12, 13, 14,17, 18, 19, 20, 24, 25, 26, 27, 28, 31 March 2014 Plea: 15 and 16 April 2014 | |
DATE OF SENTENCE: | 29 April 2014 | |
CASE MAY BE CITED AS: | DPP v Atelemo & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 658 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Affray – stabbing – multiple accused – multiple victims – family dispute – different sentencing consideration for each accused depending on age, role, whether guilty plea or jury verdict, time at which guilty pleas first offered, and co-operation
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McWiliams | OPP |
| For Accused Atelemo-Tuiafito For Accused Atelemo For Acused Puleanga Mr Accused Taupati For Accused Togi For Accused F. Tufuga For Accused L. Tufuga | Mr H. Rattray Ms S. Poulter Mr R. Backwell Mr S. Ginsbourg Mr D. Cronin Mr L. Gwynn (Ms L. Cassimatis at sencence) | Slades & Parsons Matthew White & Associates Lewenberg & Lewenberg S Pica Criminal Law Robert Stary Lawyers Turnbull Lawyers Tony Hannebery Lawyers |
HER HONOUR:
1 On the night of 2 October 2012 eight people in two cars drove to the home of Soape Uluakiahoia and his wife Anabella in Waves Drive, Point Cook. At least two of them were armed with knives, and at least one with a baseball bat.
2 By the time they drove off together a short time later, three people, Soape and Anabella Uluakiahoia, and Sopae’s sister, Lesieli To’o had been kicked, punched and stabbed.
3 As a result all of the eight people in those two cars have now pleaded guilty to or been convicted by a jury of offences relating to the events of that night. Seven of you, six in person and one in absentia, now come to be sentenced for your roles in these events. The eighth has already been sentenced by me in circumstances to which I will refer later.
4 Unless otherwise stated, the account I set out here comes from the statement of agreed facts for sentencing purposes relied upon in respect of the accused Anne Puleanga, Suliana Atelemo, Messine Togi, Francis or Leon Tufuga and Lance Tufuga. Where I deal with matters concerning the role of Sim Atelemo-Tuiafitu, Junior Taupati and John Tautua’a, there is additional evidence from the trial to which I will make reference. Any such evidence I take into account is, in my view, in respect of them, consistent with the jury verdicts.
5 It is difficult to understand the reasons for this attack, or its ferocity. You and your victims are all, through blood or relationship, part of the same extended family. Three of those who come to be sentenced are siblings, Anne Puleanga, Sim Atelemo-Tuiafitu and Suliana Atelemo. Their partners, Francis or Leon Tufuga, Messine Togi and Junior Taupati respectively, and Leon Tufuga’s younger brother Lance, are also in the dock. John Tautau’a, who I have already sentenced for his role, is the younger cousin, or strictly speaking step cousin of the Atelemo siblings, that is Anne, Sim and Suliana. His father and their mother are step siblings.
6 Soape Uluakiahoia’s wife Anabella and sister Lesieli To’o were not the only members of his family present at Waves Drive at the time of the attack. His brother Sosuia and sister Mafileo, as well as his children were present. The Uluakiahoia siblings and the Atelemo siblings are first cousins. John Tautua’a is also a first cousin of the Uluakiahoias.
7 Most of those who come to be sentenced have no previous convictions. You had all come to Australia from New Zealand in search of what you described as a better life. All came from good family backgrounds, had successfully completed high school, or the second last year of high school, and had good employment histories. The six older ones range in age from their early 30s to mid 20s, and are all married, or in long-term relationships. Four of you, Sim Atelemo-Tuiafitu and Messine Togi, and Suliana Atelemo and Junior Taupati, have young children of your own. The two younger ones, John Tautua’a and Lance Tufuga, who were 18 and 19 respectively at the time, lived with and were in effect under the care of one or more of the older ones. All the males were employed in skilled or semiskilled work, and the women either employed in responsible positions in retail or administrative work, or engaged full-time in bringing up their children.
8 None of you report any problems with drugs or alcohol, or physical psychiatric or psychological disability.
9 The attack which occurred this night grew out of a disagreement between Anne Puleanga and Lesieli To’o. After she had arrived in Melbourne, Anne and her partner Francis or Leon Tufuga had lived for some time in the house occupied by Lesieli and her husband Wallace. There were apparently some tensions between them which were exacerbated when in February 2012 Anne and Leon moved out. Other members of the family became involved and insults, threats and ill feelings were communicated on Facebook, through text messages, telephone calls and the like.
10 Initially the ill feeling seemed to extend to but be confined to the sisters and sisters-in-law of the two protagonists, in particular Anne’s sister Suliana, and Lesieli’s sister-in-law, Anabella. It would appear Anne’s partner Leon, Suliana’s partner Junior Taupati, and Anabella’s husband Soape Uluakiahoia were aware of the dispute but not involved.
11 Some hours before the events that give rise to the charges for which I must sentence you all, Suliana was driven to Lesieli’s house by her partner Junior. There she abused and threatened Lesieli, producing a baseball bat and struck the security door behind which Lesieli was standing a number of times with it. Junior eventually told Suliana to leave and he drove her away.
12 Later that day Suliana telephoned Anabella and told her she was coming to her house that night to resolve the issues between them. Anabella then asked her sister-in-law Lesieli to come over. Lesieli arrived in her car at Anabella and Soape’s house about the same time as the two carloads of the Atelemo group arrived.
13 As Lesieli got out of her car, Anne ran at her and started to attack her. She punched her with a closed fist. Suliana joined in. Her partner Junior was seen to arm himself with a baseball bat he obtained from the boot of the car he and the women had arrived in and stand nearby. Messine Togi, the partner of Anne and Suliana’s brother Sim Atelemo-Tuiafitu also joined in the attack on Lesieli. Suliana and Messine punched Lesieli to the head and, with Anne, dragged her to the ground where they continued to attack her.
14 Lesieli’s screams attracted the attention of the people inside the house. Soape and Anabella, together with Soape’s younger brother Sosuia and younger sister Mafileo, ran out. Soape ran to the women, grabbed hold of Suliana and pulled her away then released her. She ran straight back to where Anne was attacking Lesieli and rejoined the attack on her. Anabella ran in, and Anne, Suliana and Messine attacked Anabella as well as Lesieli. They were punched and kicked to the head and body. At some stage during the attack Anne produced a knife and a screwdriver, holding one in each hand. Lesieli and Anabella were both stabbed. Anabella to her face hand and chest, Lesieli to her hands and back.
15 In addition to the stab wounds, each of Lesieli and Anabella also sustained injuries from the punches and kicks. Anabella’s injuries included a fracture of the right temporal skull bone and lacerations. Lesieli’s injuries included injuries from the punching and kicking to her face and neck and arms and back.
16 Arising out of that you, Anne Puleanga, pleaded guilty at the commencement of the trial to one charge of affray, one charge of recklessly cause injury to Lesieli To’o, and one charge of recklessly cause injury to Anabella Uluakiahoia. You Suliana Atelemo, pleaded guilty to one charge of affray, and you Messine Togi, also pleaded guilty to one charge of affray.
17 Whilst the attack by Anne, Suliana and Messine on Lesieli and Anabella was going on, that is after Soape had pulled Suliana away from the original attack on Lesieli, Soape was set upon and attacked.
18 The agreed plea summary in respect of Leon Tufuga and Lance Tufuga has all five male accused, that is the Tufuga brothers and Sim Atelemo-Tuiafitu, Junior Taupati and John Tautua’a involved in dragging Soape into the centre of the road, and away from the fight involving the women. It acknowledges Soape was punched and kicked by members of the group of men, and struck by Junior Taupati with a baseball bat, causing him to fall to the ground. By their pleas of guilty to affray, Leon and Lance Tufuga acknowledge they and the other accused continued to kick Soape to the head and body once he had fallen to the ground, and that Soape was again struck by Junior with a baseball bat whilst he was down. They also acknowledge that Soape got to his feet and was again punched in the face by Leon, Lance and Junior, causing him to fall to the ground a second time. On the agreed summary, it was after this that Soape, having again gotten to his feet, was confronted by Sim, knife in hand. Consistently with the agreed summary, the evidence at trial does not support a finding that either Lance or Leon Tufuga participated in the subsequent stabbing of Soape. They fall to be sentenced for the affray on their involvement up until the time Sim confronted Soape with the knife after he had got back to his feet.
19 Sim Atelemo-Tuiafitu and Junior Taupati pleaded not guilty to affray. Each of them acknowledge they were present at the scene, but denied participating in the attack on Soape. Each was found guilty by the jury of affray. I am satisfied, consistently with the jury verdicts, that each of them was present in the group involved in dragging Soape into the centre of the road, and attacking him there. I am satisfied consistently with the jury verdicts that once in the middle of the road, Soape was punched and kicked by members of the group, that he was knocked to the ground twice and was punched and kicked by members of the group whilst on the ground.
20 Whilst I am satisfied that Junior was armed with a baseball bat at this time, I am not satisfied beyond reasonable doubt for the purposes of sentencing Junior that he struck Soape with the baseball bat. Soape was aware Junior had the bat, but as he acknowledged in cross-examination, he was struck with what he believed was the baseball bat from behind but did not actually see a blow with the bat being wielded by anyone. So far as Lance and Leon Tufuga are concerned, as I said, I take the agreed summary of facts as being the basis upon which I sentence them.
21 I am not able for sentencing purposes to attribute a particular punch kick or blow with a weapon to either Sim or Junior during this part of the attack. However I am satisfied that they were participants in a joint attack involving punching and kicking by the five assailants.
22 I am also satisfied on the evidence of John Tautua’a adduced at trial that in the course of the attack that forms part of the affray Sim was armed with a knife and that, whilst punching in the direction of Soape with the knife in his hand, Junior was an unintended victim of Sim’s knife. I am satisfied that in the course of the attack on Soape, Sim, whilst aiming towards Soape, accidentally stabbed Junior in the back. I am satisfied that this caused Junior to pull back from the attack on Soape and remonstrate with Sim for stabbing him. This is supported in my view by the evidence adduced by counsel for Junior during the trial of photographs taken from Junior’s phone after arrest of lacerations or stab wounds to a man’s back, and the suggestions put in cross-examination that the wounds were to Junior’s back, and were the result of stab injuries sustained on 2 October 2012.
23 In sentencing Sim for his participation in the affray, I sentence him on the basis that he was a participant in the punching and kicking, and that consistently with the evidence of John Tautua’a he was armed with the knife and was punching at Soape with the knife in the course of the affray.
24 In sentencing Junior for his participation in the affray I sentence him on the basis that he was a participant in the punching and kicking, and that he was armed with a baseball bat at the time. Although I think it likely, I am not satisfied beyond reasonable doubt on the evidence at trial that Junior struck Soape with a baseball bat in the course of the affray. I am not satisfied beyond reasonable doubt that Junior was aware that Sim was armed with the knife at any time before he was stabbed in the back.
25 In so far as there is still any suggestion that Sim or Junior went to the house in Waves Drive to support or protect, in Sim’s case his sisters Anne and Suliana, in Junior’s case his partner Suliana, I reject it. As the pleas of guilty and the jury verdicts make clear, it was the Atelemo group who were the aggressors. Sim and Junior may not have been involved in the original dispute between Anne and Lesieli, and Junior, although driving Suliana to Lesieli’s house earlier in the day, may well have stopped matters going further at that stage by telling her to leave and driving her away, but it is clear that each of them had by the night of 2 October 2012 decided to join the cause and become an active participant. Not only did they attend but each of Sim and Junior went there armed.
26 By the time the trial commenced, the three female assailants had pleaded guilty to affray and, so far as Anne was concerned, to intentionally cause injury charges relating to her stabbing attack on Lesieli and Anabella. The three women’s role in the affray related to their participation in the attack on Lesieli and Anabella. That is how I regard it for sentencing purposes.
27 The prosecution case in respect of the male accused was that all five had participated in the affray by reason of their role in the attack on Soape. All five male accused had also been charged with intentionally cause serious injury and its lesser alternatives. The prosecution case was that Sim had stabbed Soape, and that the other four were guilty either as participants in a joint criminal enterprise or alternatively by intentionally encouraging and assisting Sim in the stabbing of Soape.
28 The Tufuga brothers, Leon and Lance, pleaded guilty to affray at the commencement of the trial. The prosecution did not proceed with charges relating to their involvement in the stabbing of Soape. John Tautua’a did not appear in answer to his bail at the commencement of the trial, and a warrant was issued for his arrest.
29 So the trial commenced against Sim and Junior only. It was the prosecution case that Sim, having gone to Waves Drive armed with a knife, intentionally caused serious injury to Soape by stabbing him after the five on one fight came to an end. It was Sim’s defence that the stabbing was not done by him, but by John Tautua’a. The Uluakiahoia witnesses were cross-examined to that effect, but maintained it was Sim, not John, who had stabbed Soape.
30 It was the prosecution case that Junior was a participant in a joint criminal enterprise with Sim to stab Soape, alternatively, that he intentionally encouraged and assisted Sim to seriously injury Soape. The prosecution relied on evidence Junior told the other assailants to stand back when Sim stood face to face with Soape, brandishing the knife, and that he chased Sosuia away as he came to Soape’s aid, thereby providing Sim with unimpeded access to Soape. Junior’s case, as opened and as put to the Uluakiahoia witnesses, was that whoever stabbed Soape, did so on his own, without any agreement, or encouragement or assistance from Junior.
31 At the end of the first week of the trial, and after Soape, Sosuia, Anabella and Mafileo had given evidence and been cross-examined consistently with the defence cases I have identified, John Tautua’a surrendered himself. By this stage there was also evidence that Junior had wounds to his back when arrested some weeks later, and suggestions put, but not adopted, in cross-examination that the injuries were stab wounds, sustained on the night of the attack on Soape.
32 Consistently with the position taken in relation to the Tufuga brothers, the prosecution accepted a plea of guilty to affray from John Tautua’a and did not proceed with the charges relating to the stabbing of Soape. He made a statement detailing his involvement and that of his co-accused which implicated Sim as the stabber, and Junior as engaging in conduct which could be regarded as providing intentional encouragement or assistance to Sim in causing serious injury to Soape by stabbing.
33 After pleading guilty and being sentenced for his role in the affray, swearing that his statement was truthful and providing an undertaking to give evidence in the trial against Sim and Junior, and following an extensive Basha cross-examination, John Tautua’a was called as a prosecution witness in the trial of Sim and Junior. Consistently with his statement and undertaking, he gave evidence Sim had produced the knife in the course of the five on one attack, and accidentally stabbed Junior in the back, that after that he and the Tufuga brothers had stood back, shocked, as Sim, brandishing the knife, advanced upon Soape, threatening to kill him and then stabbed him repeatedly in the face head and neck. He gave evidence that as Sim advanced upon Soape brandishing a knife and threatening to kill him, Junior, still armed with the baseball bat had chased Sosuia away as Sosuia had run in to his brother’s aid. This evidence was consistent with the evidence which had already been given, and maintained under cross-examination by Soape and Sosuia.
34 According to both Soape and John Tautua’a, Sim advanced upon Soape, threatening to kill him and with the knife raised, lunged forward, slashing at the left side of his face. Soape put his hand up in front of his face and was slashed along the side of the little finger and down into his hand. As a result, Soape dropped his hand and Sim then went for the face again, slashing the left side of his face along the cheekbone and then straight down the cheek. Soape fell to the ground and Sim then lent over him, straddling him and holding him down while he stabbed repeatedly at his head and shoulder. John Tautau’a described it as frenzied. He described the shocked response of himself and the Tufuga brothers as this was happening. He said he was so concerned that he ran in to grab Sim and pull him away, fearing he would kill Soape. John Tautua’a’s intervention allowed Sosuia, who had returned after being chased away by Junior, to go to his brother’s aid.
35 John Tautua’a and Sosuia both gave evidence that Sosuia ran into Soape, crying and saying “look what you’ve done to him.” Sosuia helped Soape up and they ran away and around the corner. Sim chased them, still threatening to kill Soape and adding threats to kill his family. Soape’s evidence was to like effect. John Tautua’a gave evidence he chased Sim again and held him, preventing him from catching up with Soape and Sosuia.
36 He said Junior then reversed his car up the street to where he and Sim were and told them to get in. They did so, making five in that car, and all eight assailants left the scene in one or other of the cars in which they had arrived.
37
John Tautua’a’s credibility became a central issue in the trial. Before his surrender, Mr Rattray on behalf of Sim had adduced evidence John had been supposed to stand trial with his co accused, had failed to appear, and was believed to be in New Zealand. This was adduced to support a defence argument he had absconded because he was in fact the stabber and was avoiding justice.
Mr Rattray had opened to the jury it would hear evidence John had admitted to the stabbing. When he gave evidence, he was cross-examined to that effect. Anticipating that challenge, and on proper notice to the defence, the prosecution led evidence from John Tautua’a that shortly after the stabbing, and before the accused were arrested, he had been pressured by Sim, in the presence of his co accused, to admit to the stabbing, and take the punishment for it. He said he had been told he should do so, because his co accused were family, that he should do so as he was young, without dependents and responsibilities, and did not have as much to lose as the others who did have partners, dependants and responsibilities. He gave evidence he had eventually agreed to accept responsibility and had told Sim, on the day of the final directions hearing in December 2013, that he had led his lawyer to believe he was the one who had stabbed Soape, and would admit it in court. A series of text messages passing between John and Sim on the day before to final directions hearing supported this account.
38 This then was the evidence by the conclusion of the trial. Assessing the evidence at that stage, it appeared to me the prosecution case in respect of Junior on the cause injury charges was properly one of aiding and abetting, not joint criminal enterprise, and without objection by Mr Lindner on behalf of Junior, that was the basis on which it was left to the jury.
39 Counsel for both accused argued John Tautua’a should not be accepted as a witness of truth. Mr Rattray argued the jury should not exclude as a reasonable possibility that John, not Sim, had stabbed Soape. He argued it should not exclude as a reasonable possibility that John’s evidence he had agreed to take responsibility, and his statement he had told his lawyer he had done the stabbing were truthful admissions, and should lead to an acquittal.
40 Mr Lindner argued the jury should not be satisfied Junior encouraged the stabbing of Soape, as he argued it could not exclude as a reasonable possibility that he was not present when the stabbing occurred, as he was chasing Sosuia.
41 By its verdict of guilty of intentionally causing serious injury in respect of Sim, the jury must have been satisfied beyond reasonable doubt that it was Sim, not John, who did the stabbing, and that John’s ”admissions” were not truthful. The evidence of Soape, his brother Sosuia and John Tautua’a was all to that effect.
42 By its verdict of guilty to recklessly causing serious injury in respect of Junior, the jury must have been satisfied that Junior, being aware that Sim was intent on stabbing Soape, and contemplating the probability that serious injury might result, intentionally encouraged and assisted him by chasing Sosuia away thereby preventing him from going to Soape’s aid. The jury must have rejected the arguments put on behalf of Junior that the time and place at which he chased Sosuia meant he could not have been at that part of the roadway where Sim advanced upon Soape and stabbed him.
43 It was not until John Tautua’a became a prosecution witness, that there was evidence the knife had been produced in the course of the five on one attack on Soape, and that Junior had been stabbed by Sim at that time. Before this evidence had been given, the case for Junior had been conducted on the basis that after the five on one fight stopped, Soape had got back to his feet and, with all five assailants standing facing him, had been challenged by Junior to a one-on-one fight. It was put that in pursuit of that end Junior had told the other assailants to stand back, and that in disobedience of that directive, Sim had advanced upon Soape with the knife.
44 The jury must have been satisfied Junior did chase Sosuia away, at a time he was aware Sim was armed, and advancing on Soape with the knife. It is consistent with the verdict, in my view, that the five on one attack came to an end after Sim stabbed Junior in the back. This is consistent with John Tautua’s evidence, and with the evidence of the photographs of the injuries to Junior’s back. It follows from that, in my view, that the jury must have excluded, as a reasonable possibility, that Junior’s conduct, in telling the other assailants to stand back, was in order to challenge Soape to a one on one fist fight.
45 I have made these fact findings in respect of Junior’s role based on my understanding of the way the defence case was put in cross-examination of witnesses and in Mr Lindner’s final address. Junior Taupati had been on bail throughout the trial but on 10 April, the 22nd day of the trial, when the jury was due to commence its second day of deliberation, Junior did not appear. As coincidentally a juror was ill, deliberations were suspended for the day. The following day Mr Taupati again failed to appear in accordance with his bail conditions and after hearing submissions from counsel and considering the ruling of Gillard J in DPP v Mokbel[1] I directed that the jury resume its deliberations in the absence of the accused.
[1][2006] VSC 520.
46 Mr Lindner and his instructing solicitor Mr Pica remained until verdict but declined to remain or present submissions for sentencing purposes. Thus I have considered the factual basis the sentencing consistently with the jury’s verdict based upon the submissions of the prosecution and my analysis of the case as I understood the case for Junior was put, but without the benefit of defence submissions.
47 The injuries suffered by Sosuia Uluakiahoia in the stabbing were as both counsel acknowledged serious. He sustained stab wounds to his face running from his left ear and down his cheek, to the region of his ear, and to his neck, shoulder and hand. He also had a fractured cheekbone, bruising and abrasions to his head, face, body and arms as a result of being punched and kicked in the affray.
48 Victim impact statements have been provided by Soape, Sosuia, Anabella and Mafileo Uluakiahoia, and Lesieli To’o. They set out in graphic detail the effect on them of the attack on that night and the long lasting consequences for them. They all bear, and will continue to bear, physical scars from the attack, physical reminders. They also bear emotional and psychological scars and of course have suffered the rupture of their family.
49 Whatever may have been the reasons for and the rights and wrongs of the original dispute between Anne and Lesieli, there is simply no justification for the appalling behaviour revealed by the evidence in respect of the participation by each of you in the affray charges to which you have pleaded guilty or been found guilty of.
50 The resort to violence, because of some minor grievance is simply unacceptable in a civilised society such as the one we like to think we live in. To do so at night outside people’s homes in a residential area only adds to the seriousness of the offending. To enlist others into supporting you in a dispute that is not of their making and is none of their business also adds to the seriousness of the offending. To join in a dispute not of your making and that is none of your business adds to the offending. And to involve younger family members or extended family members into the dispute, to involve them in fighting is a further aggravating feature because of the corrupting influence it has on the moral values and sense of family loyalty and ties of young people. The seriousness of that is compounded here in relation to the involvement of John Tautua’a and Lance Tufuga. Each of them was young, significantly younger than the rest of you. Lance was only 19, and he was involved only because he was the younger brother of Anne’s partner. John Tautua’a was barely 18 at the time, and had been entrusted by his family in New Zealand into the care of the older supposedly responsible members of the group.
51 it is particularly egregious and cowardly to resort to group violence, attacking and outnumbering your victims. And clearly for those who went armed, that adds again to the seriousness of the offending.
52 It follows that subject to considerations personal to each of you, denunciation, just punishment and general deterrence loom large in sentencing.
53 So far as those who pleaded guilty to or were convicted of charges involving the infliction of injury or serious injury again considerations of denunciation, just punishment and general deterrence are significant factors.
54 For each of Anne Puleanga and Sim Atelemo-Tuiafitu, the seriousness of your cause injury or cause serious injury charges must be assessed not only by reference to this background that I have detailed and to the nature of the injuries inflicted by you but also by reference to the weapons used by you, a screwdriver and a knife so far as Anne Puleanga is concerned, a knife so far as Sim Atelemo-Tuiafitu is concerned. Going armed with knives or other sharp weapons into a situation of high emotional conflict and where you are part of the aggressor group, adds to the seriousness of the offending. This was no spontaneous act, but premeditated. You were each amongst the older ones of the group, you should have been those taking responsibility for resolving the dispute by peaceful means. Instead your conduct aggravated the situation and significantly worsened the harm done to your victims. It is very poor role modelling indeed for the younger ones of your group.
55 Although Junior Taupati has not been present since the start of the second day of jury deliberations, and despite the absence or withdrawal of his legal advisers at the sentencing stage of the proceedings, I am satisfied that it is appropriate to proceed to sentence him, despite the fact that no submissions in mitigation were put to me, and no submissions about general sentencing principles, or fact findings based on the jury verdict, were put before me by his legal advisers. Again in coming to that view I rely upon the ruling of Gillard J in Mokbel, and of the approval of His Honour’s approach in that case by the Court of Appeal when considering Mokbel’s appeal against conviction and sentence which he instituted once he was arrested and returned to Australia.[2]
[2]Mokbel v R [2013] VSCA 118.
56 I propose to deal first with those who pleaded guilty to affray and for whom that represents the only charge. That is, Lance Tufuga, Messine Togi, Leon Tufuga and Suliana Atelemo. Your roles are properly described as participants in somebody else’s fight. Your complicity is measured by your agreeing to join in and support Anne Puleanga in her escalating dispute with Lesieli To’o, to accompany her to the house that night, knowing there was to be some form of confrontation and being prepared to join in a fight. You were each enthusiastic participants in the fighting, but your roles are confined to punching and kicking your respective victims. Each of you was part of the pack which outnumbered your victims.
57 There is no evidence any of you were armed with weapons or were aware before the fighting started that Anne Puleanga or Sim Atelemo-Tuiafitu were armed, or at least no evidence I am prepared to accept for the purposes of your pleas as satisfying me of that beyond reasonable doubt.
58 I take into account in respect of each of you that you are otherwise of good character. You have no previous convictions, no subsequent convictions and nothing pending. There is no evidence of physical or mental illness, psychiatric, psychological or physical disability, intellectual impairment or substance abuse which might provide some explanation for your participation, or some reduction in your moral culpability. None of you are Australian citizens. You were all born in New Zealand and are of Samoan, Tongan, or mixed Samoan and Maori heritage. Each of you wants to stay in Australia and make your future here. Your participation in the events of this night may affect your right to stay here. Although I cannot speculate as to the likely course taken in respect of your rights of residence, I take into account the effect on each of you of the uncertainty as to your future in that regard.
59 Each of you is entitled to a reduction in sentence otherwise appropriate by reason of your pleas of guilty. Each of you pleaded guilty at the beginning of the trial, and you are entitled to the utilitarian benefits flowing from those pleas.
60 Affray carries a maximum of five years imprisonment. The maximum sentence is one measure of the seriousness with which Parliament regards an offence. But it is not the only measure. I have already identified the features which in my view make this a serious example of its type, and which makes denunciation, deterrence and just punishment significant factors. But I must also consider, and take into account, the fact each of you pleaded guilty, the fact none of you have any prior or subsequent convictions, your prospects for rehabilitation and the need to specifically deter you from reoffending. Imprisonment is not the only sentencing option available. I cannot impose a term of imprisonment unless satisfied that the purposes for which the sentence is imposed cannot be achieved by a sentence which does not involve imprisonment. I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which it is imposed.
61 In the case of each of the four whose sole charge is affray, it was submitted by your counsel that a non-custodial sentence should be imposed. The prosecution did not submit that I would fall into sentencing error were I to impose a non-custodial sentence for any of you. I am satisfied, so far as Lance Tufuga and Messine Togi are concerned, that the sentencing considerations I have identified, and matters personal to them make that the correct course. On reflection I had some reservations about whether the role played by each of Leon Tufuga and Suliana Atelemo was such that no sentence other than one of imprisonment was appropriate to reflect their roles and culpability, even if such a sentence did not require immediate imprisonment. But, on further reflection, I came to the conclusion that the purposes for which the sentences in respect of those two must be imposed can be achieved by a sentence which does not involve imprisonment. In particular, I took into account the longer term and additional conditions of a Community Correction Order compared to a Community Based Order, in particular the extended period for which it can be imposed and the clear identification by Parliament of the punitive intent behind unpaid community work and the rehabilitative and deterrent intent of supervision and programs such as anger management and conflict resolution designed to address the causes of the offending. I also took in to account Parliament’s express declaration that a CCO was intended to extend to more serious offending than that previously able to be dealt with by a Community Cased Order.
62 Dealing then with each of you in turn.
Lance Tufuga
63 You are the second youngest of those who come to be sentenced. You were only 19 at the time. You have no previous and subsequent convictions and I am told nothing pending. Your involvement was explained by your counsel as being an example of misplaced youthful family loyalty to an older co-accused who at the time you felt an obligation to assist. It was submitted you have regretted your decision to become involved ever since and have shown significant remorse for your decision. The evidence before me supports those propositions.
64 You had come to Australia from New Zealand in early 2012, at the age of 19. You completed your secondary schooling in New Zealand, and commenced but did not complete the first year of a bachelor of sport and recreation at Auckland University. I was told that you, like your brother, discontinued after two semesters because of financial hardship. In any event you soon came to Australia and soon found employment in a warehouse. You lived with your brother Leon. He was the responsible adult in your life in Australia. Your mother remained in New Zealand. Through his partner Anne Puleanga, you came to know her siblings Sim and Suliana and the extended Atelemo family.
65 I accept it was through that that you became involved in this. There is no evidence you were involved in any of the exchange of threats and insults before the night of 2 October 2012.
66 After your arrest you spent 11 days in custody before release on bail. By contrast all your co-accused were released immediately. Your initial refusal of bail resulted from the difficulty in finding a place for you to live, as the circumstances of the offending and the connection with your co-accused had made it difficult for you to secure accommodation at an acceptable address. Your 11 days in custody was spent being moved from one police cell to another due to the notorious overcrowding of our prison system. This must have been a confronting experience for a 19-year-old who had never been in trouble before. That is borne out by your conduct since your release. Until you turned 21 in December last year you were on youth justice supervised bail. A Bail progress report was tendered on the plea. It is properly described as a glowing report. I accept the conclusions that you demonstrated a strong commitment to your rehabilitation and to your obligations with youth justice throughout the supervised bail period. The authors concluded that you immediately committed yourself to positive change during the course of your bail, that your behaviour and attitude had been commendable and that you frequently expressed empathy and remorse towards the victims and for the distressing impact your actions have had on your family. You were described as a model client by reason of your response to supervision and strong commitment to your rehabilitation.
67 Although your plea was not made until the commencement of the trial, you had offered to plead guilty to affray before the committal mention. That offer was renewed before the contested committal commenced and again before the trial commenced. It was rejected on each of those occasions. Between the date of committal, and the date of renewed offer before trial you had turned 21. That meant that whilst the offer was accepted you were no longer eligible for youth justice conditions. The offer was finally accepted on the day after the trial was due to commence.
68 You were the first of the accused to plead guilty, and a number of guilty pleas followed shortly thereafter.
69 In the circumstances you are entitled to have your plea of guilty treated as one made at the first opportunity, that is at committal mention time. In the intervening time you have not committed any further offences, and have, as revealed by the youth justice supervision report, demonstrated genuine remorse and commitment to rehabilitation. You have clearly matured over this time and have had to confront the sometimes conflicting demands of family loyalty and taking responsibility for your own decisions.
70 Mr Gwynn submitted that your circumstances were most like those of John Tautua’a and that you too should be sentenced to a fine. He further submitted that although a conviction was recorded against Mr Tautua’a your fine should be without conviction.
71 I agree your circumstances are most like those of Mr Tautua’a. You are both considerably younger than your co-accused. You are properly to be described as the younger brothers or cousins of the principals. However you were a bit older than Mr Tautua’a and had a little more life experience, including about a year's experience as an independent young adult in the workforce.
72 Although like him your role can be characterised as going along with the older people, the evidence revealed that after seeing Anne and Suliana attack Lesieli, and seeing members of the Uluakiahoia family run outside, you challenged Sosuia, Soape’s younger brother, to a fistfight and then chased him down the street, before joining in the attack on Soape.
73 Significantly, when comparing your role to JohnTautua’a, he not only pleaded guilty but gave an undertaking to give evidence against his co-accused and he honoured that undertaking. He was, as could be anticipated from the circumstances at the time he gave his undertaking, subjected to a protracted and gruelling cross-examination as a result, accused of being the stabber himself and accused of lying to save himself. You did not make an offer to cooperate and did not have to endure what could reasonably be anticipated he would be subjected to at the time that he was sentenced.
74
I also took into account when sentencing Mr Tautua’a that he had no current links to Australia, and the disposition that I thought being otherwise appropriate, namely a Community Correction Order, was inappropriate in the circumstances. You on the other hand have links here and wish to make your future here. I would have considered a Community Correction Order appropriate for you had it not been for your exemplary behaviour when subjected to youth justice bail. You have demonstrated that the rehabilitative needs of supervision have already been served. In my view the punitive and deterrent aspects of sentencing can in your circumstances be served, taking into account the time in custody and the time on supervised bail, by imposing a fine upon you. I am conscious of the fact that you can seek to convert that fine to unpaid community work if you are unable to pay it. In my view the fine to be imposed upon you should be greater than that imposed upon
Mr Tautua’a because the difference in circumstances which I have already identified.
75 I do not consider the fact that you may want to go back to university, and may want to pursue a career as a physical education teacher are to be a sufficient reason not to impose a conviction upon you.
76 On the charge of affray to which you have pleaded guilty you are convicted. You are fined an amount of $3,000.
77 I declare pursuant to s6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of six months fully suspended.
78 I make the forensic sample retention order sought. Mr Tufuga there is an automatic stay of one month on that fine. Although you can seek an extension of that period, and I will give your counsel the opportunity to do so. You can also, apart from me extending that time, seek an extension of time for payment of the fine from the registry of this court or enter in to an instalment payment program by agreement with the registry, or make application to convert the fine to unpaid community work with the registry. What I am going to do is ask you to leave the dock, confer with your counsel, and if you wish to seek a further stay on that fine above the mandatory one month I will give her the opportunity to make that application after I have dealt with some of the other accused. You may now leave the dock and take a seat at the side of the court.
Messine Togi
79 I accept that of the women your involvement was less than that of your sisters-in-law Anne and Suliana. I accept that your involvement can be explained on the basis of misguided loyalty to Anne Puleanga and Leon Tufuga. It was with them that you, your partner Sim Atelemo-Tuiafitu and your three young children first lived when you came to Melbourne in early 2012, looking for a better life, that is, in pursuit of better employment opportunities, better income, and what you perceived to be a better future for your children.
80 You are 28 and have no previous convictions and no subsequent matters. I was told you come from a good family. On your father's side you are descended from a Samoan chief. Your mother’s heritage is Maori. She is a social worker. You were educated at Auckland Grammar, completing your schooling without difficulty.
81 A thoughtful and impressive testimonial was provided by Memory Randall, who, although only a few years older than you, is your aunt. She refers to your deep regret and remorse at your actions. I am unable to assess whether that regret and remorse at your actions extends to remorse for the Uluakiahioa family. No submissions were presented on the plea that you were, or that I should find that you were remorseful (in the sense that term is used in Barbaro and Zirilli[3]).
[3][2012] VSCA 288.
82 In fact, reliance on remorse was a noticeable omission from the plea submissions for all accused other than Lance Tufuga. No apology was proffered by any accused to any of the Uluakiahoia family. I am satisfied in the circumstances that a conscious decision was made by the experienced lawyers representing all accused other than Lance Tufuga not to submit remorse was a relevant sentencing consideration. Of course absence of remorse is not an aggravating feature, it is relevant only to assessing prospects for rehabilitation and the need for specific deterrence.
83 You have been in a relationship with your partner and co-accused Sim since you were 15. Your three children are aged between eight and five. Although you have a good history of employment in New Zealand, initially in clerical work, and then operating a mobile hairdressing and makeup business which allowed you flexibility after your children were born, to care for them as well, you have been engaged in full time care of the children since you arrived in Australia in early 2012.
84 Sim has been the sole provider for the family whilst you have been in Australia. As a result of the jury verdicts in respect of his involvement in these events, you appreciate he is facing a significant term of imprisonment. You will lose his financial support. This will cause hardship for you. You have rent, private school fees and living expenses to meet. You have limited family support here. You are not entitled to unemployment or supporting parent benefits. Although you have a good work history in NZ, your limited family support means it will be more difficult to find suitable paid employment which will accommodate the need to care for your children out of school hours.
85 The time following the entry of your guilty plea has been especially difficult for you. Your partner was on trial, and you must have been aware he risked being found guilty, and risked being sentenced to a significant term of imprisonment. You had discovered shortly before the trial began that you were pregnant. During the trial you miscarried. I am told, and accept the combination of that, and the jury verdicts has left you feeling shell shocked, and unable to make plans for your future, apart from expressing a desire to remain in Melbourne so you and the children can maintain contact with Sim while he serves his sentence.
86 If you are unable to support yourself and the children here, and decide to return to New Zealand, you and your children will face the added burden of being unable to maintain contact with Sim during his term of imprisonment.
87 It is a heavy price to pay for joining in a dispute that was not of your making, that did not involve or affect you or your immediate family. Yet you must accept responsibility for your conduct, for your choice to join in. You are an adult, a parent. You should have had the maturity and awareness of responsibility to your children, if not to seek to dissuade Sim and the others from resorting to violence, at least to distance yourself from this, to decline to join in.
88 I accept your absence of other offending, your responsibilities as a mother, now the sole provider for your children, and the belated appreciation of the consequences of your involvement mean you are unlikely to reoffend, and that you have good prospects for rehabilitation.
89 It was put you should be sentenced to a fine, or placed on a Community Correction Order with a component of unpaid community work. You have no savings and no income, no means to pay a fine. I was told you hoped you would be able to obtain employment during hours the children were at school, and so, be able to pay their private school fees, as well as the rent on the home you have been living in since moving out of Anne and Leon’s house. I was told initially you had no one to assist with child care, so employment would have to be limited to school hours. When I asked how, in those circumstances, you would be able to comply with the work component of a Community Correction Order, or convert a fine to unpaid community work, further inquiries were made of you. I was then told your younger brother Ezekiel could care for the children one day a weekend, so enabling you to discharge your obligations under a Community Correction Order.
90 Although a parity argument was put in relation to the sentence imposed on John Tautua’a, I do not consider your circumstances are such that a like sentence should be imposed. He was barely 18, single, without parental guidance or the responsibility that parenthood brings. At that age, the 8 year age gap between you and him is significant. You were an adult, he a young person, just into his legal majority. His courage on the night, in stopping Sim from continuing to stab Soape, and his demonstration of genuine remorse by his cooperation make his circumstances vastly different. Significant too, was his lack of ties to Australia by the time of sentencing.
91 You have been assessed as suitable for a Community Correction Order, and have indicated your preparedness to consent to one. That is what I propose to do. The only condition that I impose upon it apart from the core conditions is a component of unpaid community work.
92 Messine Togi, on the one charge of affray, to which you have pleaded guilty, you are convicted. You are sentenced to be placed on a Community Correction Order for a period of 12 months, commencing today, 29 April, and ending on 28 April 2015. You must attend at the Werribee Community Correctional Services at 87 Synnot Street, Werribee, within two clear working days after the commencement of this order. Today being Tuesday, that means by Thursday.
93 The mandatory terms that apply to all Community Correction Orders are these. You must not commit another offence for which you could be imprisoned during the time the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means you must not be impaired by drugs or alcohol when you attend for any compliance with your Community Correction Order. You must report to and receive visits from the secretary or delegate. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary or delegate and you must obey all lawful instructions from and directions of the secretary or delegate. You must perform 100 hours of unpaid community work over the period of 12 months as directed by the regional manager.
94 If you fail to comply with the order the secretary or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83(a)(u) of the Sentencing Act. Do you understand the effect and conditions of this order? Do you consent to it?
95 I have also been asked to make a forensic sample retention order and I propose to do so. I will ask your counsel to take that order down to you, you can leave the dock and sign it, when you have signed it I will take that.
Suliana Atelemo
96 Your role sits between that of Messine and Anne. You became embroiled n Anne and Lesieli’s dispute, a dispute that was nothing to do with you, and did not affect you or your partner. Like Messine, your conduct in the affray was punching and kicking. There is no evidence you were aware before she stabbed Anabella and Lesieli that Anne was armed.
97 Your involvement in the threats to Lesieli earlier that day shows the level of ill will you bore her, and the violence of your language and threats. Yours cannot be described as a spontaneous involvement that night. On the evidence before me, you were instrumental that day in fanning the flames and precipitating the conflict that erupted that night.
98 As the older sister, you should have been the one who was defusing, not inflaming the dispute.
99 On the evidence, I am satisfied you were hot on Anne’s heels as she ran at Lesieli and began to attack her, and that your first blows were landed moments after Anne’s. I do not accept, as Ms Poulter urged me, that you became involved only after seeing your sister Anne punched.
100 To put such a submission on the plea, in the face of the evidence on the depositions, demonstrates that your guilty plea, although deserving of weight for its utilitarian benefit, is not evidence of remorse. Your expression of regret has not advanced beyond saying you wished you had not gone to the Uluakiahoia house that night, and that you wish it had never happened.
101 The evidence you yelled out to stop the attack on Anabella and Lesieli is not, in the circumstances, in my view any evidence of remorse or acceptance of responsibility for your conduct. I am satisfied it was precipitated, in part, by a realisation your victims were bleeding by wounds that you had not inflicted, and in part by the realisation the police had been called.
102 You are now 32, the mother of two daughters aged 13 and 11, from a previous relationship, and from your relationship with Junior Taupati, the mother of a three month old son. You too have no previous convictions and no subsequent matters. You too can properly be described as otherwise of good character.
103 You, too, are well educated, came from a good family in New Zealand, and have continued in paid work whilst having a family and bringing up your children. You have had, for most of their lives, sole responsibility for the care of your older daughters. Your resume is impressive. You have a long history of stable employment. You have held senior retail management positions with the one employer in New Zealand, Brisbane and Melbourne for the last 7 years. You have been on unpaid maternity leave for the last 6 months. You came to Australia in 2009, and began your relationship with Junior Taupati in 2010.
104 As a result of Junior Taupati’s conduct in failing to answer his bail towards the end of his trial, you are now the sole provider for yourself and your three children, and left in a state of considerable uncertainty as to your future, and the future contact between your infant son and his father. I accept it was not the way you had hoped to enjoy these early stages of his life.
105 The jury verdicts in respect of him also mean he faces, when caught, a significant term of imprisonment.
106 For you too it can be said the hardship you will suffer as a result of your partner’s role, is a heavy price to pay for your involvement in the events of this night.
107 For the reasons I have outlined, I consider your moral culpability much greater than that of those I have already sentenced. Were it not for the fact you are left as the sole carer for your three children, in particular a three month old baby, I would have seriously considered adding a term of imprisonment to the Community Correction Order that I propose to sentence you to. The order I do make is significantly longer and more onerous than that imposed on Messine, to reflect the differences I have identified between your roles, circumstances, and responsibility as I see them on the material before me.
108 You too have been assessed as suitable for a Community Correction Order, and indicated you are prepared to enter into an order and comply with its conditions.
109 Suliana Atelemo, on the charge of affray, to which you have pleaded guilty, you are convicted. You are placed on a Community Correction Order for a period of two and a half years, commencing on 29 April 2014 and ending on 28 October 2016. You must attend at the Werribee Community Correctional Services at 87 Synnot Street, Werribee, within two clear working days after the commencement of this order. The same mandatory conditions that I read to Messine apply to you, that is you must not commit another offence for which you could be imprisoned during the time the order is in force.
110 You must comply with any obligation or requirement prescribed by Regulation 17, that is not being impaired by substances when attending for any attendances pursuant to the Correction Order. You must report to and receive visits from the secretary. You must let a Community Corrections Officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary or delegate and you must obey all lawful instructions from, and directions of, the secretary or delegate.
111 In addition to those core conditions I impose the following conditions. You must perform 250 hours of unpaid community work over a period of 30 months, or two and a half years, as directed by the regional manager. I order that 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of this unpaid community work condition. That is I am also going to impose conditions in respect of treatment and supervision, but 50 hours of compliance with the treatment and supervision will count as hours of unpaid community work.
112 If you fail to comply with the unpaid community work component of the order the secretary or delegate may give you a direction to perform additional hours of unpaid community work. You must be under the supervision of a Community Corrections officer for the period of the order, the two and a half years, and you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, specifically courses in anger management and conflict resolution. Do you understand the effect and conditions of the order?
113 OFFENDER SULIANA ATELEMO: Yes.
114 HER HONOUR: Do you consent to it being made?
115 OFFENDER SULIANA ATELEMO: Yes.
116 HER HONOUR: Thank you. You too can leave the dock, take a seat in the body of the court, I ask your counsel to approach you. When you are sure you understand it, sign it, and that will then be returned to me.
Francis Tufuga
117 You, as the older brother of Lance Tufuga, and the partner of Anne Puleanga, come to be sentenced for your role. Like your younger brother, you completed your secondary schooling without incident in New Zealand, and like him, I was told, started a physical education teaching course at university, also discontinuing after 2 semesters due to family financial hardship. You are a New Zealander of Samoan heritage.
118 You went to New South Wales 4 years ago to pursue a career as a professional rugby player, playing in the league which is the feeder league for top level professional players. Ultimately you met Anne and moved to Melbourne with her, or to be with her. You have been involved in the Footscray rugby union club. You have a good employment history, mainly since coming to Australia as what is described as permanent casual employment in logistics and warehousing.
119 You, too, have no previous convictions and nothing subsequent. You, too, offered to plead guilty to affray before committal, and I take your plea as one offered early. I give it weight for its utilitarian value. I do not consider the fact of the plea itself to be evidence of remorse.
120 It would appear you and Anne have recently sought the counsel of your parish priest. His letter refers to you having expressed remorse, being deeply saddened, and being open to family mediation, in the hope of reaching what he describes as an “amicable and peaceful resolve”. Nothing was put on your behalf, or Anne’s, to provide any support for that. On the evidence before me, I am not satisfied that you are remorseful.
121 I am supported in that view by the failure, until I raised it, to consider that you bore any moral responsibility for involving your 19 year old brother Lance, who was living with you in your home, and effectively under your supervision and care.
122 I accept your role was confined to punching and kicking Soape, lending size and numbers to that unprovoked and cowardly five on one attack on him. I accept there is no evidence you were aware he was armed until the knife was produced, and that there is no evidence you took any further part in the attack on Soape. Nor, might I add, by contrast to the case of John Tautua’a is there any evidence you tried to stop Sim.
123 I do not accept you attended Waves Drive that night out of protective concerns for Anne. You were part of a group which converged on the Uluakiahoias, intent on a fight. You were part of the aggressor group. The overwhelming inference is that you went there to provide support and muscle. You cannot invoke protection or defence of others when you are the aggressors. To maintain that stance at the time of plea simply demonstrates you have in this regard also failed to accept moral responsibility. It is not consistent with remorse, indeed it contradicts it.
124 For the reasons I have already outlined I consider you, too, are properly punishable by imposition of a Community Correction Order. I rank your role slightly less than that of Suliana, for the reasons that I have outlined.
125 On one charge of affray, to which you have pleaded guilty, you are convicted and sentenced to be placed on a Community Correction Order for a period of two years commencing today and ending on 28 April 2016.
126 The same core conditions apply to you. You must attend at Werribee Community Correctional Services at 87 Synnot Street, Werribee, within two clear working days after the commencement of this order. You must not commit another offence for which you could be imprisoned during the time the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17, not being substance impaired when complying with your order. You must report to and receive visits from the secretary or delegate. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary or delegate. You must obey all lawful instructions from and directions of the secretary or delegate.
127 In addition to the mandatory terms I am imposing the following terms. Two hundred hours of unpaid community work to be completed over that two year period. For you too I order that 50 hours of treatment and rehabilitation programs satisfactorily undertaken by you in accordance with my order are to be counted as hours of unpaid community work. For you too I direct that you undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, in particular anger management and conflict resolution courses. So 50 hours of participation in those courses will count as 50 hours of your unpaid community work.
128 I must warn you also that if you fail to comply with the unpaid community work component of the order that the secretary or delegate may give you a direction to perform additional hours of unpaid community work. I also order that you must be under the supervision of a Community Corrections officer for a period of two years. Do you understand the effect and conditions of this order?
129 OFFENDER FRANCIS TUFUGA: Yes.
130 HER HONOUR: Do you consent to it being made?
131 OFFENDER FRANCIS TUFUGA: Yes.
132 HER HONOUR: You too can leave the dock, I will ask your counsel to accompany you and to sign that order when you are satisfied that it is correct.
133 MR McWILLIAMS: Just while that document's being handed down, Your Honour, I just note that in relation to the last two accused, that of Suliana and also Leon, Your Honour did not make a declaration in relation to the 464 application.
134 HER HONOUR: Thank you, I made the forensic sample retention orders sought in respect of each of Suliana Atelemo and Lance Tufuga.
Anne Puleanga
135 Anne Puleanga, your dispute with Lesieli is at the centre of this. Whatever the rights and wrongs of the original dispute between the two of you, there is no justification for resort to violence, or for the enlisting and drawing in of others into your fight. No explanation has been given for why you armed yourself, and why you went, supported by such numbers, to the Uluakiahoia house that night to “have it out”. Not surprisingly no attempt was made by Mr Backwell to justify your behaviour in that regard.
136 Your culpability is clearly higher than those I have already sentenced. You went armed, with a band of loyal supporters, bound by ties of family loyalty to you, to the Uluakiahoia house. Although each of the co-accused are ultimately responsible for their own conduct, you must take some responsibility, some moral responsibility, for drawing them into your dispute, and fanning the flames of enmity.
137 It is particularly cowardly to go armed into a fight where your victims are unarmed, outnumbered and unaware you are armed. Mr Backwell submitted this was spontaneous offending. I reject that submission. The dispute had been in existence since at least February 2012. You were an active participant in various exchanges between February and October 2012 which not only kept it alive, but added to its intensity. You went to the house that night in order to have a confrontation, and you went armed. There is nothing spontaneous about any of that.
138 In addition to your higher culpability for the affray, by reason of these matters, you stand separate from those I have sentenced already because you stabbed each of Anabella Uluakiahoia and Lesieli To’o, and have pleaded guilty to a charge of recklessly cause injury in respect of each of them.
139 You stabbed them, in anger, and from a base motive, revenge. You escalated what had been an ugly verbal argument, exchanges of insults and threats, into a vengeful attack with a knife and screwdriver, weapons which were bound to leave physical scars, to disfigure your victims. The photographs taken shortly after the attack and the victim impact statements make it clear that your conduct has left physical as well as emotional or psychological scars on your victims. They have a daily reminder of what happened to them that night when they see those scars. Although it is not open to find, having regard to the charges to which pleaded guilty, that you deliberately aimed at Anabella’s face, I do take into account in assessing the seriousness of your conduct that the wounds caused by your stabbing to Anabella and Lesieli were all in the vicinity of their upper bodies, to Anabella’s face and breast, and to Lesieli’s shoulder.
140 Recklessness involves an appreciation that injury is a probable consequence of your conduct, and a decision to proceed regardless. It follows that in sentencing you on the cause injury charges, I must do so on the basis that you appreciated the probability they would sustain stab or slash injuries to their bodies with your weapons. The evidence satisfies me, having regard to the description of the fighting, that you appreciated the probability that they would sustain stab or slash injuries to their upper bodies including their heads and faces. And yet you decided to proceed regardless.
141 This, together with what I have referred to in relation to the background and surrounding circumstances, places these charges at the high end of seriousness for offences of recklessly cause injury.
142 It is hard to understand how you find yourself in this position. You are, like the others I have to sentence, well educated, of a good family, with a history of good employment, demonstrating sustained efforts to improve your skills and job opportunities of the years. Like the others, there is no evidence of physical or mental illness, psychiatric, psychological or physical disability, intellectual impairment or substance abuse which might provide some explanation for your participation, or lessen your moral culpability.
143 Mr Backwell described you as being regarded, apart from this, as kind, considerate and hardworking. The testimonials and employment records provided on your behalf confirm this.
144 Mr Backwell submitted that although the offending was serious you were deserving of another chance, and that as a first offender with your history, I should look at other, non custodial options.
145 You, too, pleaded guilty at the start of the trial, and are entitled to a reduction in the sentence otherwise appropriate by reason of those guilty pleas. You are entitled to full benefit for the utilitarian value. Despite the reference in the testimonial provided by your parish priest to remorse, to which I have already referred when sentencing your partner, it was notable that Mr Backwell expressly disavowed reliance upon remorse in your case.
146 I have given your case long and anxious thought. I have come to the view that no sentence other than one involving a term of imprisonment immediately served is adequate to reflect the overall seriousness of your conduct. I gave anxious thought to whether I could sentence you to imprisonment and a Community Correction Order. I came to the view that for two separate stabbings, in those circumstances, the maximum term of imprisonment allowable, namely three months even when coupled with a Community Correction Order of substantial length and with onerous conditions was woefully inadequate to reflect the seriousness of the offending.
147 I find therefore that your conduct as I have described it puts you in a different position to those I have already sentenced, and that parity considerations do not justify the imposition of a like sentence on you for affray, or a sentence involving no more than three months imprisonment in combination with other Community Correction Order conditions for that or the cause injury charges.
148 Anne Puleanga, on the three charges to which you have pleaded guilty you are convicted. On Charge 1, of affray, you are sentenced to be imprisoned for a period of nine months. I direct that three months of that be served cumulatively upon the base sentence, Charge 2, and the other partial cumulation order I am about to make on Charge 3. On Charge 2 of recklessly cause injury you are sentenced to be imprisoned for a period of 18 months and that is the base sentence. On Charge 3 of recklessly cause injury you are sentenced to be imprisoned for a period of 18 months and I direct that 12 months of that be served cumulatively upon the sentence on Charge 2 and the partial cumulation order on Charge 1. That makes a total effective sentence of two years and nine months. I am suspending 18 months of that sentence which means you must serve 15 months of it. I am not imposing a parole period, that means that at the end of the 15 months you are automatically released, you do not have to see whether the parole authorities decide you are eligible for parole and you will not have parole conditions imposed upon you.
149 In respect of you I also make the order for the retention of the forensic sample sought. Are there any further orders that are required to be made in respect of Ms Puleanga?
150 MR McWILLIAMS: No Your Honour.
151 HER HONOUR: Do the orders that I pronounced in respect of her reflect what I said I intended to do?
152 MS CAUST: Yes Your Honour, it appears so.
153 MR McWILLIAMS: Yes Your Honour.
154 MS CAUST: Your Honour, it is just the s.6AAA.
155 HER HONOUR: Thank you, yes, I beg your pardon. Pursuant to s.6AAA I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of four years imprisonment and I would have fixed a period of two years as the time that you would have had to have served before being eligible for parole. Can you remove Ms Puleanga please?
Sim Atelemo-Tuiafitu
156 Sim Atelemo-Tuiafitu, your role in the affray, like that of your sister Anne, is more serious, as you went into it armed with a knife. I am satisfied you were not only armed, but produced it in the course of the five on one attack. That one of your fellow assailants was stabbed is a clear demonstration of the dangers of producing a knife in such angry, crowded, and frenzied circumstances.
157 The stabbing, on the jury verdict, was a planned and premeditated attack. Your counsel did not challenge, for the purposes of fact finding for the plea, that you produced the knife in the car on the way to Waves Drive. He submitted I should not be satisfied beyond reasonable doubt that you said in the car, as John Tautua’a swore you did, that you were going to stab someone, presumably, from the context, Soape. It matters little in my view whether you did say that or not. Your conduct, from at least the time John saw you punching at Soape during the five on one attack, with the knife that he had first seen in the car in your first, at the time that John saw and heard Junior’s response to being stabbed, makes it clear that you were using the knife you had gone, armed, to the scene with, to stab Soape.
158 It was acknowledged on the plea that the evidence supporting the verdict on the intentionally cause serious injury charge supports the inference you deliberately aimed for Soape’s face with the knife, so, intending not only to wound him but to scar his face, so leaving a permanent reminder of your attack. Your conduct demonstrates a continued intent after that to stab him to his face, head and neck. The inescapable inference is that you intended to do him really serious injury. Your words, the threats to kill him, also support that.
159 The intent, the repeated stabs, the premeditation or planning, and the efforts to continue despite John Tautua’s efforts to restrain you and Sosuia’s attempts to rescue his brother all serve to rank this at the higher level of seriousness for offences of this type.
160 The evidence of your commitment to your family, and the relevance of that to your prospects for rehabilitation must be tempered by the evidence of the lengths you were prepared to go to save yourself. It is clear that you have been a good, devoted father, devoted husband or partner, and a very good provider for your wife and children. You have lived together as a family and clearly wanted to continue to do so and to improve the prospects for yourselves and your children by coming to Australia.
161 That conduct stands in vast contrast to your behaviour on this night, but that evidence of devotion to your family also has to be contrasted with, or tempered by, the length that you were prepared to go to, to save yourself and to manipulate your 18 year old cousin, who was, as the evidence reveals, in awe of you, and submissive in the face of your importunings, to take the responsibility for you. You were prepared to impose upon an 18 year old family member to saddle himself with a conviction for a serious offence he did not commit, in order to save your skin. Your conduct in seeking to sheet home the blame to John Tautua’a and make him take the blame for something he did not do adds also in my view to your moral culpability, and demonstrates the need for weight to be given to specific deterrence.
162 You are 29 years old and have a relatively minor criminal record in New Zealand. You have admitted convictions in 2003 for wilful damage, dangerous driving and failing to stop. Now having seen a certified extract from New Zealand, you have also admitted to a conviction in 2010 for common assault, for which you were sentenced to 40 hours community work, and a subsequent conviction for breach of the community work order made as a result. So your previous convictions are relatively minor save for the fact that you do have a previous, and not that long ago, conviction for assault, which also means the need to impose a sentence that has an element of specific deterrence is important.
163 It was put on your behalf that the hardship caused to your family, your partner Messine, and three children by the consequences of the jury verdict is exceptional, and warrants a reduction in the sentence otherwise appropriate. The hardship is emotional and financial. You have been the sole breadwinner since the family’s arrival in Australia. Messine , although skilled, experienced and employable, will have difficulty supporting herself and the children, paying the rent on the family home, and the children’s private school fees alone without your financial support. As a New Zealand citizen resident in Australia, she is not entitled to social security benefits and you have no savings to fall back on. Although she intends to remain in Australia and to support you whilst imprisoned, and to facilitate continued contact with the children, her lack of family support here makes it likely she will have to return to New Zealand. If that happens, you will lose what contact you would otherwise be entitled to, with her and the children, whilst serving your sentence.
164 Whilst these are matters of hardship to your wife and children, I do not consider they fall into the category of exceptional circumstances. I accept they will make imprisonment more onerous for you than it would be for a man without dependents, or without a demonstrated history of providing them with a stable and loving family life, and financial support.
165 I accept that imprisonment will also be more onerous for you whilst your right to remain in Australia remains uncertain. I cannot and do not speculate about what course the Immigration authorities will take.
166 It is hard to understand why you, at 29, with a history of a stable relationship with your partner Messine, of your bringing up your children together, good work history in New Zealand and here, the high regard with which you have been held by your employers, and your desire to come to Australia to make a better life for yourselves, find yourself in this position today.
167 I accept your relatively minor criminal record, good work history and continued family support all provide an incentive for you to refrain from further offending, and to rehabilitate yourself. But those positives are tempered by your participation in this attack, involvement in a fight not of your making and nothing to do with you, the unexplained ferocity of your part in the attack, and your attempts to make John Tautua’a take the blame. Your prospects for rehabilitation must be assessed as good, but guarded.
168 I agree there should be some concurrency between the sentences for the offences, and that there should be a considerable gap between the head sentence and the non-parole period.
169 Sim Atelemo-Tuiafitu, on the two charges of which the jury has found you guilty, you are convicted. On the charge of affray you are sentenced to be imprisoned for a period of 12 months and I direct that six months of that be served cumulatively upon the sentence on Charge 2. On Charge 2, of intentionally cause serious injury, you are sentenced to be imprisoned for a period of six years. That makes a total effective sentence of six years and six months. I fix a period of four years as the time that you must serve before being eligible for parole. You have served 18 days in pre-sentence detention, is that correct?
170 MR McWILLIAMS: Yes Your Honour.
171 HER HONOUR: I direct that that be counted and reckoned as part of the sentence already served. I declare, pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty I would have sentenced you to a term of imprisonment of nine years and I would have fixed a period of six and a half years as the time to serve before being eligible for parole. I also make the order for the retention of the forensic sample I have sought in respect of you.
172 COUNSEL: Sorry Your Honour, did Your Honour intend (indistinct).
173 HER HONOUR: No, it was not in my notes, and then I thought “6AAA”, but of course, there is no 6AAA because there is no guilty plea.
174 COUNSEL: And I am sorry if I missed it, I am not sure if Your Honour gave one for Ms Togi.
175 HER HONOUR: She has got a CCO, you do not do a 6AAA for a CCO. Do the orders that I have made in respect now of Mr Atelemo-Tuiafitu, striking out the 6AAA declaration, reflect what I said I intended to do?
176 MR McWILLIAMS: Yes Your Honour.
177 HER HONOUR: Is the arithmetic correct?
178 MR McWILLIAMS: Yes Your Honour.
179 HER HONOUR: Are there any further orders that are required to be made?
180 MR McWILLIAMS: No Your Honour.
181 HER HONOUR: Could you please remove Mr Atelemo-Tuiafitu.
Junior Taupati
182 I have earlier set out the factual basis upon which, consistently with the jury verdict, I proceed to sentence.
183 As with Anne Puleanga and Sim Atelemo-Tuiafitu, his participation in the affray is more serious because, once at Waves Drive, he armed himself with the baseball bat which was in the boot of the car. The evidence does not permit me to make any finding about whether he intended to arm himself with it before he left for Waves Drive, or whether he intended to use it merely to threaten, or as an offensive weapon.
184 What I am satisfied of, on the evidence, is that he used it to lend support for the Atelemo women, Suliana, Anne and Messine as they attacked Lesieli and then Anabella. I am not satisfied, in the circumstances in which the attack took place, that he armed himself with it on arrival at Waves Drive to protect or defend the Atelemo women.
185 So far as the jury verdict on the charge of assisting or encouraging Sim in causing serious injury to Soape, I am satisfied that the fact Junior was armed with the bat when he chased Sosuia away served to add menace and meaning to his efforts to chase him away, and so leave Sim to the stabbing, unimpeded.
186 His conduct, in assisting Sim in the manner he did, and in the circumstances, after Soape, so significantly outnumbered, had already been repeatedly punched and kicked by the group, makes his culpability high, and ranks the offending as a serious example of its type.
187
The offending is of an order which, subject to considerations personal to
Mr Taupati, is such that no sentence other than one of imprisonment is appropriate.
188 In the circumstances, as no submissions in mitigation were put, I have limited personal information .
189 Junior Taupati is in his late 20’s or early 30’s, a New Zealand citizen, and has prior convictions there for offences of public nuisance, assaulting or obstructing police, wilful damage, and possession of dangerous drugs. Apart from the assault police, which appears to be assault or obstruction in the course of arrest, there are no convictions for violence. They too rank, in the circumstances, as relatively minor convictions. What they do mean is that some weight must be given to specific deterrence.
190 Mr Taupati had been in a relationship with the co accused Suliana Atelemo since 2010, and they are the parents of a three months old son. His absconding during deliberations has rendered the status of his relationship with his partner and son uncertain.
191 There is no evidence which would permit me to give any weight to specific deterrence, or prospects for rehabilitation, apart from the evidence that I have referred to in relation to the New Zealand convictions, nor is there any evidence that I can take in to account in relation to the effects on him of the hardship to his family caused by the convictions. Nor is there any basis on the material before me, that very limited material, to temper the weight appropriate having regard to the objective circumstances of the offending, to his moral culpability or general deterrence.
192 I consider it appropriate to fix a non-parole Period, although appreciating that I am working to a great extent in a vacuum.
193 Junior Taupati is convicted of the charge of affray and the charge of recklessly causing injury which the jury found proven. On the charge of affray he is sentenced to be imprisoned to a period of 12 months, six months of which is to be cumulative upon the sentence for recklessly cause injury. On that charge he is sentenced to a period of four years. That makes a total effective sentence of four years and six months and I fix a non-parole period of three years and six months. There is no pre-sentence declaration, is there, in respect of Junior Taupati?
194 MR McWILLIAMS: No Your Honour.
195
HER HONOUR: I make the forensic sample order sought in respect of
Mr Taupati. Do the orders that I have made in respect of him reflect what I said I intended to do and are there any further orders that are required to be made?
196 MR McWILLIAMS: Yes, the orders reflect Your Honour's stated intention and no there are no further orders.
197 HER HONOUR: I have no signed or counter-signed the Community Correction Orders in respect of Messine Togi, Suliana Atelemo, and Francis Tufuga. When copies of those have been made and provided to them they will be free to go. That is all the orders, then, is it?
198 MR McWILLIAMS: As Your Honour pleases, yes.
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