Director of Public Prosecutions v Tanuaulilo
[2016] VCC 1303
•29 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00291
CR-16-00292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| STEVEN TANUAULILO |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 10 June, 29 August 2016 | |
DATE OF SENTENCE: | 29 August 2016 | |
CASE MAY BE CITED AS: | DPP v TANUAULILO | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1303 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Hutton | OPP |
| For the Accused | Mr D Sala | Tony Hannerbery Lawyers |
HER HONOUR:
1
Steven Tanuaulilo, please remain seated for now. You have pleaded guilty to offences that relate to two separate incidents. In relation to the offending on
28 September 2015, you have pleaded guilty to a charge of recklessly causing injury. In relation to the offending on 7 and 9 November 2015 you have pleaded guilty to one charge of intentionally causing serious injury, one charge of intentionally causing injury, one charge of false imprisonment and one charge of recklessly causing injury.
2 You have also pleaded guilty to related summary offences, being assault with an instrument and assault with a weapon relating to the second incident.
3 The offences with which you are charged carry the following maximum penalties:
· Intentionally causing serious injury: 20 years; imprisonment;
· Intentionally causing injury: ten years' imprisonment;
· False imprisonment: ten years' imprisonment;
· Recklessly causing injury: five years' imprisonment;
· Assault with an instrument: two years' imprisonment;
· Assault with a weapon: two years' imprisonment.
4 A summary of the offending is Exhibit A in these plea proceedings. I do not intend to repeat the entirety of that summary.
5 The following is a brief overview of the offending committed by you on the two occasions that give rise to the charges.
28 September 2015
6 On 28 September, you went to the address of the victim Mr Elsdon at around 10pm. You approached him when he was seated in his car, holding a knife up behind your wrist. Unprovoked, you began hitting Mr Elsdon while he was seated in the driver’s seat, and then pulled him out of the car and onto the ground. You were joined by another three or four people, and together kicked and punched Mr Elsdon several times while he was on the ground. Witnesses observed the group of you running away from him after the assault.
7 As a result of the assault, Mr Elsdon suffered grazes over his body, a stab wound behind his right knee which required eight stitches, and underwent surgery to his right hand to assess his tendons from another stab wound. He spent three nights in hospital. (Charge one –Recklessly cause injury).
8 You attended Mr Elsdon’s address to assault him at the request of an acquaintance, who also participated in the assault.
9 In your record of interview, you admitted approaching Mr Elsdon holding a knife and stated, “I cut him a bit. Once I’ve cut him some people got out of a car and that’s when I chucked my knife away and just went for him and then we all gang-bashed him.”
7-9 November 2015
10
The second incident involves serious offending against your partner
Ms Laikong, with whom you have three children, all of whom are under the age of four years. Ms Liakong is 21 years old. In the months leading up to
7 November, 2015 she had noticed you were using "ice" and becoming increasingly violent.
11 On Saturday 7 November, Ms Laikong was at home with you and others. You became angry and began yelling at her and punched holes in the walls of the home. You then picked up a hockey stick and repeatedly assaulted her with it; hitting her across the back, arms and legs. You hit her at least five separate times and then stopped.
12 You then directed her to accompany you to your mother’s house, which was nearby and where your young daughters were living. While walking there you again hit Ms Laikong with the hockey stick; yelling at her to walk faster. She couldn’t go any faster, and you punched her to the face giving her a blood nose. You yelled at her, “If you don’t walk quicker I will kill you right here”. (Charge 2 – Intentionally causing injury is represented in the continuing assault of Ms Laikong at her home and whilst walking to her mother-in-law’s home).
13 On arrival at your mother’s house where your children were present, you demanded more drugs and again punched Ms Laikong in the body and face. You took your mother’s phone from her and searched the house for other phones so nobody could ring the police for help.
14 After calming down for a while and playing with your children, you again became angry with Ms Laikong, accusing her of lying to you and of conspiring against you. You began to punch her again to the head and body. You retrieved the hockey stick and hit her across the body and legs.
15 You then directed Ms Laikong to prepare some cannabis for you. As she did so, you became inexplicably angry with her. You left the room, returned with a knife and without warning, stabbed her in the right leg. It caused immediate pain. You gave Ms Laikong a cloth for the bleeding. (Charge 3 – Intentionally causing serious injury representing the stab in the leg and the further assault with a hockey stick at her mother-in-law’s house).
16 Bizarrely, during the attack on Ms Laikong you filmed yourself and took photos, stills of which I have viewed and are contained in Exhibit E in these plea proceedings.
17 At around 10-11pm your father and twin brothers, aged 19 years, returned home. You allowed your brother Simon to treat Ms Laikong’s leg with a first aid kit, but would not allow anyone to call an ambulance to treat her. The family was too scared to challenge you. (Charge 4 – False imprisonment).
18 You then left the house and Ms Laikong went to sleep. The next day, although bleeding from the stab wound, you refused to allow any member of the family to get help for her.
19 On Monday 9 November 2015, your mother left the house and you locked the door, retrieved the hockey stick and again began to beat Ms Laikong with it. You kicked her and hit her over her back. You struck the hockey stick over the bruises that had formed from your earlier attacks. Terrified, some of your children witnessed this attack. They were screaming. Your mother came to the house, collected two of the children and left.
20 Undeterred, you continued to beat Ms Laikong with the hockey stick to her body, arms and legs. You continued to hold the knife, causing Ms Laikong to fear you would stab her again. Her wound remained painful and was still bleeding. You directed her to prepare more cannabis for you, and demanded money from her father. You forced her to smoke cannabis whilst standing despite her injury, threatening that, “If you sit down I’ll stab your other leg”.
21 In an act of humiliation, you took a pair of scissors and cut off large chunks of Ms Laikong’s hair. You then hit her five or six times with the hockey stick to the face. (Summary charge – Assault with an instrument – representing the assault with the hockey stick and the scissors).
22 The police were ultimately called to the house on Monday, after you assaulted your brother Simon. He was leaving the house to go to work when you grabbed him by the collar. He called you an idiot. In response you punched him to the nose with a clenched fist, causing pain and bleeding. You were pushed away and ultimately taken to the ground by your father, Solia Tanuaulilo, and your brothers.
23 You walked out of the front door saying, “I’ll leave but you guys will all die”. You then re-entered the house carrying a small knife. Simon held up his empty hands to you, but you stepped forward and stabbed him in the shoulder, causing pain. Your father and other brother wrestled you to the floor. Simon took the knife from you. Your father received a cut to his hand during the struggle. (Summary charge – Assault with a weapon).
24 Simon also received a stab wound to his shoulder and was taken to hospital for treatment. (Charge 5 – Recklessly causing injury). You were also injured and hospitalised for non-life threatening wounds.
25 Ms Laikong was taken to the Northern Hospital for treatment. The stab wound to her leg was discovered to be 14 centimetres deep and had caused nerve damage. By the time she arrived at hospital, the wound had become infected. She required two separate surgeries to her leg wound. She also had extensive bruising, a broken right arm, and fractured ribs.
26 In her victim impact statement, Ms Laikong speaks of her fear of you during the incident, and the knowledge that with every outburst of anger, she was at risk of further physical abuse. Clearly, the unrelenting nature of the violent attacks had a profound and traumatising impact on her.
27 Fortunately, her injuries appear to have resolved and she now speaks of looking forward to her future with her young daughters.
28 Mr Tanuaulilo, the offending is very serious. The aggravating features are many. The violence you directed towards your partner was unrelenting. The attacks upon her were unprovoked. The deep stab wound inflicted to her leg must have caused significant pain. That you prevented her receiving medical assistance is an aggravating and cruel feature of the offending. Over the period of the weekend you terrorised not only your 21 year old partner, but other members of your family; including your father and brother. Sadly, your young daughters witnessed the violence directed at their mother.
29 The offending on 28 September 2015 also involved significant and unprovoked violence, including the use of a knife, on a victim who was unknown to you and with whom you had no quarrel.
30 You have a limited, but relevant criminal history. On 24 May 2012, you were sentenced to three years detention in a Youth Justice Centre for three armed robberies, theft and a charge of intentionally causing serious injury. The serious injury was caused when, during the course of an armed robbery, you struck the store owner to the head with a hammer resulting in a fractured skull requiring surgery to insert a metal plate. In a separate armed robbery you had threatened the store owner with a machete. The offending was committed while you were under the influence of drugs and alcohol. You were 20 at the time. Before 2012 you had no history of any offending.
31 I turn now to discuss your personal circumstances.
32 You are now 23 years old. You were 22 years old at the time of the offending. You were born in Auckland, New Zealand, and are of Samoan descent. You are one of eight children and have ten half brothers and sisters. You were raised in an environment where you too were exposed to violence, domestic abuse and alcohol misuse. Tragically, your sister drowned when you were eight years old, an incident you appear to have blamed yourself for.
33 Your family moved to Australia when you were 14 years old. You attended three different schools, disengaging completely midway through Year 12, at which time you were using both alcohol and marijuana. You have worked as a tree-lopper, but by the age of 20 you began injecting ice and it is conceded you were drug affected at the time of this offending.
34 You met Ms Laikong in 2010 after leaving school. You had your first child together before entering youth detention. Your other two children were born following your release. There is now an intervention order in place preventing contact with your family.
35 In mitigation, your counsel highlighted your early plea, the admissions made by you during a three-hour record of interview and significantly, that at 23 years of age (22 at the time of the offending), the sentencing considerations applicable to youthful offenders, particularly focused on rehabilitation, apply.
36 It is certainly relevant that you entered a plea at the earliest opportunity. In doing so you have saved the victims, particularly Ms Laikong, from having to endure the trauma of giving evidence, and you have saved the community the cost and expense associated with a criminal trial.
37 In your record of interview, you make admissions regarding your conduct. I do not accept however that your interview demonstrates remorse for your actions. Generally the explanations you give in the record of interview are incoherent and reflect a delusional and paranoid thinking. Your response is best considered in the context of the psychiatric assessment of Dr Nina Zimmerman, consultant psychiatrist, conducted on 6 May 2016.
38 Dr Zimmerman’s report dated 6 May 2016 outlines the account given by you of the circumstances leading to your offending. You told Dr Zimmerman that you had smoked about 4 grams of marijuana and approximately 1 gram of ice on 28 September 2015. You said that you needed to prove to an acquaintance that you were useful and to “earn his trust” you assaulted another male at his request.
39 You also told Dr Zimmerman that you were “crazy” at the time of the assaults on your partner and family in November 2015, and that you did not know what was real. You told Dr Zimmerman that you assaulted Ms Laikong because you were angry about what you believed were repeated lies and deceit and said you were “off my head” on ice, which you were using on a daily basis. Regarding the assault on your brother, you told Dr Zimmerman that you were on edge, confused and suspicious, believing your brothers were “hit men” you suspected were watching the house.
40 During her assessment, Dr Zimmerman says you presented as a pleasant and cooperative man, showing no evidence of depressed or elevated mood. She says you became distressed remembering the confusion leading up to your arrest. She found no evidence of any formal thought disorder, which may be associated with psychotic disorders. In Dr Zimmerman’s opinion, your heavy drug use resulted in an amphetamine-induced psychosis. Dr Zimmerman notes that you continue to view events in a suspicious manner, but does not consider you to be psychotic at present.
41
Given the paranoid and delusional nature of the comments made during your record of interview, and even elements of paranoia demonstrated in your comments to Dr Zimmerman, I sought a further psychiatric assessment pursuant to s.8A of the Sentencing Act 1991. Dr Patel, consultant psychiatrist with the Victorian Institute of Forensic Mental Health, assessed you on
25 August 2016. Dr Patel also concluded that at the time of your offending you were suffering an Amphetamine-Induced Psychotic Disorder, which has now resolved. Dr Patel found no evidence of any concurrent mental disorder that requires treatment.
42 Dr Zimmerman reports that you expressed regret at having harmed others, particularly your ex-partner, and that you were horrified at the extent of the violence you committed. I accept that you are remorseful for your conduct now the effects of your heavy ice use have abated.
43 However, as your counsel concedes, this is serious offending that requires the imposition of an immediate and substantial term of imprisonment. The Crown concur and submit that weight should be given to just punishment, general and specific deterrence, denunciation and protection of the community. These are certainly relevant sentencing considerations in this case.
Consideration
44 Intentionally causing serious injury is a serious violent offence, and under the relevant provisions of the Sentencing Act 1991, you fall to be sentenced as a serious violent offender on Charge 3. I direct that this be entered into the record of the court.
45 I am required to have regard to the provisions of Part 2A of the Sentencing Act which requires that, in determining the length of your sentence, I regard protection of the community as the principal purpose for which sentence is imposed. I may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of the instant offence considered in light of the objective circumstances. The prosecution has not however sought a disproportionate sentence and, in the circumstances of this case, I do not propose to impose one.
46 Section 6E of the Sentencing Act also requires the imprisonment term imposed for the relevant offence to be served cumulatively unless otherwise directed. The obligation imposed by s.6E must be considered in light of the obligation on the Court to give effect to the principle of totality. In this case, to allow for the full operation of the provision would produce a disproportionate sentence. I must ensure that the total effective sentence is proportionate to your overall criminality. Further, you cannot be subject to double punishment for the same conduct.
47 Mr Tanuaulilo, whilst you are a relatively youthful offender, the focus given to rehabilitation in cases such as Mills and Azzopardi have less application to your sentence for two reasons. First, you are to be sentenced as a serious violent offender, where the serious nature of the offending correspondingly reduces the mitigating effects of your youth. Second, your prospects of rehabilitation must be assessed in the light of your prior criminal history, specifically a previous conviction for significantly violent offending, including intentionally causing serious injury, committed under the influence of drugs. It could not be contended that you were unaware of your capacity to act violently when under the influence of ice.
48 One matter relevant to sentencing is the assessment of Dr Patel as to your intellectual functioning. In his report, Dr Patel says that you present as a young man with “limited intellectual capacity” and assesses that you “may be in the mildly intellectually disabled to borderline range”. Although his assessment was not definitive, the assessment of Dr Patel that you may have a mild intellectual impairment reduces, to a modest extent, your moral culpability for the offending.
49 Given your prior history, I am somewhat guarded as to your prospects of rehabilitation. Your rehabilitation is very much dependent upon your commitment to long-term treatment for your addiction to methylamphetamine. I note that Dr Patel recommends that upon your release you have access to a supported, supervised environment. Your counsel submits that this could best be achieved through a combined sentence of imprisonment and a community correction order. However, in my view, the objective seriousness of your offending and the need to impose a sentence that operates as a general and specific deterrent precludes such a sentence.
50 I have had regard to your age and your prospects of rehabilitation in sentencing you. I note that it is your first time in adult custody. I have also had regard to the fact that your time in custody will now be an isolated one, as your family, with the exception of your sister, has ceased all contact with you because of this offending. The intervention order also prevents any contact with those protected by the order, including your children.
51 The protection of the community and general deterrence are of significant importance in cases of family violence. Your partner was prevented by your abusive and controlling conduct from escaping your violence or a report being made to authorities. Your family were powerless in the face of your threats to protect her from your violence, or enable her to receive proper medical attention. Even the presence of your young children did not deter you from the continuing attacks on Ms Laikong. They then witnessed the terror of your behaviour towards their mother. Your brother and father were also victims of your violence. The court must send a clear message to others who would perpetrate family violence in their homes and in the presence of their children that such offending will result in lengthy periods of imprisonment.
52 In light of your prior conviction for violent offences, a sentence that operates as a specific deterrent to you must also be imposed.
53 One of the difficult aspects in sentencing you is the application of the totality principle, noting the tension created by the application of s.6E of the Sentencing Act. I have determined that it is appropriate in your case to reflect the objective gravity and other relevant sentencing factors in the individual sentences on each charge, because to do so would otherwise force artificial moderation, which is undesirable in terms of general deterrence. The totality principle must however be applied, and I have determined that this is best achieved by orders for concurrency which, but for the totality principle, would otherwise not be ordered.
54 For the sake of clarity and because you are being sentenced on Charge 3 as a serious violent offender, I make it clear that I am directing that, apart from the accumulations I have ordered, all sentences are to be served concurrently.
55 Mr Tanuaulilo, if you could stand, please? I am convicting you on all charges on the indictment and sentencing you to imprisonment as follows:
56 On Charge 1: recklessly causing injury – two years, six months’ imprisonment; on Charge 2: intentionally causing injury – three years’ imprisonment; on Charge 3: intentionally causing serious injury – four years and six months’ imprisonment (head sentence); on Charge 4: false imprisonment – two years’ imprisonment; on Charge 5: recklessly causing injury – two years’ imprisonment. On the summary charge of assault with an instrument – eight months’ imprisonment. On the summary charge of assault with a weapon – eight months’ imprisonment.
57 I order that ten months of the sentence imposed on Charge 1, ten months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 5, and four months of the sentence imposed on the summary charge of assault with a weapon be served cumulatively upon each other, and cumulatively upon the sentence imposed on Charge 3.
58 This makes a total effective sentence on the indictment of seven years’ imprisonment. I fix a minimum term of four years, six months before you will be eligible for parole. I declare that you have served, and I will confirm this figure with the prosecution, 290 days of pre-sentence detention. 293 days, is that correct?
59 MR SALA: Yes.
60 HER HONOUR: I will amend that to 293 days of pre-sentence detention.
61 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty, but been found guilty of these offences, I would have sentenced you to a total effective term of nine years imprisonment with a minimum term of seven years to be served. Please have a seat.
62 MR SALA: As Your Honour pleases.
63 HER HONOUR: Are there any questions in relation to the sentence I have imposed?
64 MR SALA: No, Your Honour.
65 MR HUTTON: I made an oral application for a s.464ZF sample in the last hearing.
66 HER HONOUR: Just one moment.
67 MR SALA: It was by consent - well, not in opposition, if I might say.
68 MR HUTTON: We may not have provided draft orders Your Honour.
69 HER HONOUR: Pardon me?
70 MR HUTTON: We may not have provided draft orders on the last occasion.
71 HER HONOUR: No.
72 MR HUTTON: So I can arrange for that if the order is granted.
73 HER HONOUR: Yes. Noting it is not opposed, and having regard to the serious nature of the offending and the prior criminal history of Mr Tanuaulilo, I am satisfied such an order is appropriate, and I will grant the application. If you could prepare the draft order, and I will then take Mr Tanuaulilo through the requisite steps.
74 MR HUTTON: Yes, Your Honour.
75 HER HONOUR: All right, thank you. I will stand down for now.
76 MR SALA: If Your Honour planning on taking Mr Tanuaulilo through the steps after the order? How long will the order take to be drafted? No, I think we have got on.
77
HER HONOUR: Yes, we will just print that now. Just have a seat,
Mr Tanuaulilo, and I will just - - -
78 MR SALA: Because I do not think one has been prepared yet, Your Honour. Your Honour can caution Mr Tanuaulilo and make the orders formally in chambers where consent is - - -
79 HER HONOUR: Yes, yes, yes. So Mr Tanuaulilo, if you could stand please? I am ordering under - an application has been made by the prosecution that a forensic sample be obtained from you. I am granting that application. It will involve the taking of a sample through a scraping from the inside of your mouth. I am required to warn you that a member of the police may use reasonable force in order to obtain that forensic sample. That forensic sample will be obtained within 28 days of any appeal from today's date. Please have a seat.
80 MR SALA: As Your Honour pleases, no other matters.
81 HER HONOUR: All right, thank you.
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