Director of Public Prosecutions v Fuiava

[2018] VCC 76

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-00959

DIRECTOR OF PUBLIC PROSECUTIONS

v

PENEHURO FUIAVA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 February 2018
CASE MAY BE CITED AS:	DPP v Fuiava
MEDIUM NEUTRAL CITATION:	[2018] VCC 76

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	The Office of Public Prosecutions
For the Accused	Mr P. Smallwood	Grigor Lawyers

HIS HONOUR:

1Penehuro Fuiava, you have pleaded guilty to one charge of threat to kill, one charge of stalking, one charge of theft, one charge of burglary, and two charges of criminal damage.  All those crimes carry a maximum penalty of ten years' imprisonment.

2You are 34 years of age and I accept that your plea was made at an early date.  You have through your counsel expressed remorse and you must also of course get the utilitarian benefit of that plea of guilty.  You do have prior findings of guilt and convictions for violence, including one which involved domestic violence.  As I understand your history you have been gaoled for it before.

3You, significantly in this matter, will be subject to deportation.  The sentence that I impose will bring that into effect in any event, but I am told and accept and have seen the documentation that a decision was made to deport you back in December of last year.

4Accordingly, bearing in mind that you have four small children I sentence on the basis that you will undergo this period of imprisonment with that knowledge and the sense that you will be ultimately upon that deportation have difficulties in contact with them.  The matter can be simply taken no further than that other than to note that they are ten, seven, five and three.

5The offending is in my view serious indeed.  You had been in a relationship with the victim in this matter for approximately 15 months.  You went back to Brisbane for a period of time to try and reunite with the mother of your four children.  That failed and you returned to Melbourne.

6In June of 2016 when you did come back you and Ms Lawrence did not live together but you had access to her home and a key to it.  You came and went as you pleased.  She noted that when you came back you became jealous and controlling and were verbally at least abusive towards her.

7On 18 November 2016 she was at work at a gym and you asked if she could finish work early.  You told her you had a meeting at 3 o'clock.  She did not realise she was to come home early and when she did arrive home you were there and were furious.  You were very angry yelling that she had never called or texted you.

8You eventually grabbed a carton of milk and threw it.  It hit her, causing milk to spill everywhere.  You told her to, "Fucking clean it up".  She got a towel and started cleaning.  You continued to yell at her for not contacting you.  You eventually threw another carton of milk which also hit her, leaving her covered in milk.

9She was distressed and crying.  She asked if she could get changed.  She was told she could take her top off only.  You both got towels and started to clean the floor.  At some point during this you grabbed a 30 centimetre long knife from the knife block on the kitchen bench.  You yelled at her that you were going to kill her.

10Fearing for her life she went into the laundry next to the kitchen and hid behind the door.  You repeated your threat to kill her four or five times.  At the time you were standing two metres away from her with the knife in your right hand and she was crying hysterically.  In my view that is a serious example of threat to kill indeed.  Eventually she calmed you, took the knife from you and hid it in the kitchen.

11You returned to the lounge room and resumed your dinner, screaming at her to join you.  You took her mobile phone and checked her messages.  When she asked for it back you said, "You have a choice, your phone or I snap your neck".  It was a terrifying experience for her indeed.  She pleaded with you to return the phone as she needed it for work.

12You then claimed that you slept with another woman who was better than her and she told you to leave.  She moved your belongings and you struggled over the phone before you eventually gave it back to her.  During the following day you sent her several texts and she did not respond.

13After work and not feeling safe she got a friend to come and help her clean the house.  She did not see the text messages that you had sent.  On the following day, that is 20 November 2016, a locksmith attended the house and changed the locks.  By the end of that day she had received about 200 text messages and missed calls from you.

14She continued to receive calls and texts from you over the following days.  They included questions about her whereabouts, threats to burn her house down, threats to send people to her house or work and one of the messages said, "You will see something bad in your house.  I will break everything, I will burn it down".

15This is all part of Charge 2 which is the charge of stalking and again in my view a serious example indeed.  On 24 November at approximately 6 o'clock she went to her house to collect some belongings.  Later that night she spoke with you on the phone and tried to explain that your behaviour had traumatised her.  You simply said, "If I wanted to kill you I would have killed you".

16You tried to make arrangements to collect your things and she did not want you at the house.  On 25 November she spoke to you on the phone.  You were angry and threatened to shoot her and then shoot yourself.  You then apparently apologised and said you would stab yourself.  It was recorded on her mobile phone.

17After that conversation you continued to call and send texts and then you sent - I do not think I need to go through the details of the texts, but you continued to send them and they remain part of Charge 2 of stalking.

18On the afternoon of 26 November after a conversation with you she went home to find that her house had been trashed.  There was broken glass on the floor, picture frames had been pulled off the wall and smashed, drawers and cupboards in the bathrooms and bedrooms had been emptied and their contents strewn on the floor.  Jewellery and ornaments had been smashed.

19Her friend took photographs of the damage and I have seen those photographs which have been tendered.  Police were called and attended the house.  It was a totally gratuitous violent assault on her property and obviously intended to cause her as much emotional damage as you could.

20Two days later you again called her four times and sent text messages which I do not need to go to, again part of the charge of stalking.  She did not reply.  Her friend called the police who attended the house after the last messages and you were arrested in the driveway of the property.  You were in possession of various items of jewellery belonging to her and her university identification card and a car key.  That gives rise to the charge of theft.

21Police discovered that the flywire screen window had been removed and the window smashed.  Accordingly you faced those charges and whilst the flywire screen, for example, is not of great significance, the smashing of her personal property, the entry into her house when you knew you were not to be there and the locks had been changed, and the continuing stalking and the threats to kill are a series of crimes committed against the one person in a short timeframe and show a pattern over some ten days as I calculate it of threatening, intimidating and violent behaviour.

22Gaol is inevitable.  You have now served 122 days and upon your release on bail you were sentenced to another month gaol for another matter.  You have been in immigration detention since the middle of December last year and I take that into account in an overall sentence.

23I have discussed with counsel for both parties and it is appropriate that an aggregate sentence be imposed and I think I have indicated which are the charges I regard as being the most serious in this situation.

24I understand you have not read the victim impact statement but the contents of it have been explained to you.  I think in these matters, as well as if any against children that the victim impact statement should be read out so that there is an understanding of the dreadful consequences that this sort of conduct has on people, women in particular.

25She says, "I used to feel strong, independent and embrace what life had to offer me with zest.  I had been living independently and confidently in my own home for eleven years.  I worked very hard to achieve my dream of purchasing my home for which I felt very proud.  I had also put a great deal of effort and investment into uniquely renovating, painting and decorating it.

26I find it profoundly distressing that my cherished home which one made me feel pride and joy and was a place of refuge now reminds me of the destruction, terror, fear and helplessness I experienced as a result of the crimes that took place there.  Due to these events my safe sanctuary will never be home for me again.

27Once a vibrant and independent woman I am now afraid to be on my own.  I am dependent on trusted family and friends to assist and accompany me for activities that once came easy to me.  I feel vulnerable and to stay safe I rent a small room in a family home.  I have changed my phone numbers, my daily routines and my vehicle and even my physical appearance".

28She goes on to add that in addition to the mental anguish and stress there has been significant financial loss.  She also mentions in that that the loss of her personal possessions in terms of the smashing has caused.  Some of them she said were of "deep sentimental value and were irreplaceable".

29She says, "There has also been a profound and obvious impact at my workplace.  For safety reasons I have now had to divulge personal and sensitive information about my life.  I found it confronting and unsettling that my colleagues know personal details about my life, particularly such a negative experience that I would never have anticipated living through.

30My workplace has adopted additional safety measures such as security personnel to escort me to and from my vehicle each day".  Hopefully that will not be necessary in the position you will be in over the next period of time, but she also expresses concern that you may get others to harm her.  I do not take that into account other than to accept her fear of it and I am certainly not suggesting that you would do that.

31In the other victim impact statement - I do not need to go through all the details again - she just simply says in one part, "I will never be able to get the horrifying image out of my head of the destruction, violence and memories of Ben assaulting me".

32In terms of calculating a sentence I then look to your personal matters.  I accept that you for a short period of time were out on bail and attended a CISP program.  This is a certificate from then.  I accept that you have done some courses, including anger management in gaol and certificates have been tendered.

33There are references from a church and your former partner.  They have all been tendered and you have through your counsel in court today made an apology towards your victim.  The matters that were urged upon me to take into account and I do are as follows.

34Your pleas were early and I accept that.  You did engage with KISP in the bail situation.  You have engaged with the Salvation Army and also your local church during the time you were at large.  You do have a good work history.  You have complied with the intervention order that was made against you in regard to this matter and as I have indicated you have been in immigration detention for about eight weeks and I have indicated the effect on you of being deported.

35However, the circumstances are that as I have indicated serious offending.  Specific deterrence is obviously necessary and there has to be denunciation together with an appropriate punishment.  The prospects of your rehabilitation have to be guarded in these circumstances and the risk of you reoffending would have to be significant.

36It was put to me that you committed these offences whilst in a situation of loss of not being with your children and you were using ice.  The difficulty with all that, Mr Fuiava, is that you have been violent before and against a partner.

37Taking all those matters into account there has to be a significant sentence, bearing in mind the maximum penalties for all these matters.  So on the six charges you are sentenced to be imprisoned for an aggregate period of three years.  I direct that you serve a period of two years before becoming eligible for parole.

38I direct that 122 days be reckoned as having been served under this sentence. Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of four and a half years with a minimum term of three as described as an aggregate as well. Any other orders I have to make?

39MR SMALLWOOD:  No, Your Honour.

40MS LENTHALL:  No, Your Honour.

41HIS HONOUR:  Thank you for that.  You can remove him now, thank you.

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