Director of Public Prosecutions v Tausinga

[2021] VCC 261

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-01964

CR- 19-00509

DIRECTOR OF PUBLIC PROSECUTIONS

v

SITANISELAU TUUNGASIPA TAUSINGA

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2021
DATE OF SENTENCE:	15 March 2021
CASE MAY BE CITED AS:	DPP v Tausinga
MEDIUM NEUTRAL CITATION:	[2021] VCC 261

REASONS FOR SENTENCE

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Subject: Criminal law - sentence        

Catchwords:  pleas of guilty to one charge of causing injury intentionally and four charges of trafficking in a drug of dependence – issue of drug debt during first instance of drug trafficking – offender cut victims cheek with knife  – pleas of guilty to two charges of trafficking committed two years later whilst on bail -  no history of violence – good education and work history – family support – remorse and insight -

Sentence: 7 years’ imprisonment with npp of 4 years.        

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil	Office of Public Prosecutions
For the Accused	Mr M. Gumbleton (Plea) Mr Z. Zayler (Sentence)

HER HONOUR: 

1Sitaniselau Tuungasipa Tausinga, you pleaded guilty to one charge of causing injury intentionally and four charges of trafficking in a drug of dependence.

The offending

2On the afternoon of 8 September 2016, you drove to a service station in Werribee where you met Leigh Gould and Kimberly Knight for a drug transaction.  Ms Knight, a woman aged 34, had with her $2700 in cash to pay you.  She feared for her life and gave instructions to an associate about action to take if she did not return.  Gould handed you the money in your car.  You then got into the back of Gould's vehicle, with Ms Knight seated in the front passenger seat.  Gould was not in the car.

3During a conversation about heroin, you reached over and grabbed Ms Knight.  You attacked her face with a knife, slashing her cheek from her mouth to the back of her jaw.  You hit her hard to the face and told her you wanted another $2700 before the end of the night.  That is Charge 1, intentionally causing injury.  You told her to go to hospital 'and say you were injured in a fall'.  Gould drove her to hospital, leaving her there on the side of the road with a $50 note.

4Ms Knight walked into the hospital where she was examined and found to have a full thickness laceration extending horizontally from the corner of her mouth 4 centimetres along her cheek.  She also had lacerations to her finger and thumb from trying to defend herself.  Damage to her cheek required surgery and the fixing of an internal plate to repair fractures.  She remained in hospital for three days.  You rang Ms Knight several times after 8 September, demanding an associate's telephone number, with the threat that you would be catching up with her soon.

5You were arrested on 27 October 2016 and released on bail the next day.  When arrested, you had in your possession in your car a quantity of heroin and cocaine, drug paraphernalia and $13,000 cash.  The drugs were in two bags, of which the heroin weighed 26.8 grams with 10 per cent purity.  The cocaine in the other bag weighed 16.7 grams with a purity of 83 per cent.  This resulted in Charges 2 and 3. You committed the offending in Charges 4 and 5 whilst on the bail which had been granted on 28 October 2016. 

6On 28 June 2018, you obtained the loan of a black Hyundai Accent Hatchback while your own car was being repaired.  The following day, 29 June, you were seen by police driving slowly in that car past an address at which the police were executing a search warrant.  The police intercepted you there and they found in the car a bag of methylamphetamine weighing 413 grams (90 per cent purity) with a street value of $80,000 to $250,000, that is Charge 4, and a rectangular block wrapped in multiple layers of plastic containing heroin, weighing 352 grams (72 per cent purity) with a street value of $100,000 to $210,000, that is Charge 5.

7Also found was a brown leather satchel containing over $32,000 in cash and an invoice made out to your company.  In the centre console of the car there was $600 in cash, your wallet, driving licence, and several mobile phones.  When arrested, you denied that all these things were yours.  The existing bail was revoked and you were remanded in custody.  Negotiations took place over a long period, during which your trial was adjourned three times.  The negotiations resulted in pleas to less serious charges.

Objective gravity of the offending

8It was conceded by Mr Gumbleton on your behalf that Charge 1 is a serious example of a serious offence because violence was inflicted upon a woman using a weapon and it has left a permanent scar.  Photographs taken after treatment showed a jagged scar from the corner of her mouth into her lower cheek, with multiple sutures and several sutures near her left eye.  Ms Knight provided a victim impact statement in which she refers to loss and sadness at having to leave her family by moving interstate and to lose all her belongings in the process.  She states that she suffers from a range of psychological disorders.  There is no reference to the injury she suffered but there is no difficulty in drawing an inference as to the possible effects of this upon her at the time; that the attack was terrifying and she likely feared for her life.  Similarly, a scar on her face is the likely legacy of the attack, which will have altered her appearance and which must be an ever present reminder of what happened.

9The combined weight of the drugs in your possession amounted to a commercial quantity, but you were charged on the basis of two separate amounts, both weighing under the requisite weight for a commercial quantity.  You were addicted to drugs at the time, an addiction which had developed in response to your needing stimulants to work long hours and needing increasing amounts.  By buying in large amounts you kept the price down and sold it to supply your own habit.  The need for drugs was the motivation for your offending, distinguishing you from those who traffic drugs from outright greed to make money.  However, there is nothing to reduce the criminality of the appalling violence you used to injure Ms Knight and it deserves even greater condemnation.

10The gravity of the offending that gives rise to Charges 3 and 4 is increased by reason of the fact that you were on bail at the time for similar offending.  The maximum penalties are 10 years' imprisonment for intentionally causing injury and 15 years for trafficking.

Mitigating factors

11You are a 36-year-old man, married with two young children.  Your parents came to Australia from Tonga and you were born here.  They provided a stable family life, although your father worked very long hours and was largely absent from the home for that reason.  At the age of 12 you were sent to live with your grandmother, consistent with the cultural practice of ensuring the elderly are not left alone.  You attended private Catholic schools and completed VCE with a good result, despite mixing with an older peer group and binge drinking and drug taking on weekends, unbeknown to your grandmother.

12After leaving school you studied for a degree in engineering at university and it was at this stage that you developed a drinking problem.  Because you were able to earn a good income from working in the construction industry during your period of studying, you were lured away by that and did not return to complete your degree.

13Your ability was recognised and you were promoted and eventually you started your own business.  What began as experimental drug use escalated while you were working interstate and further escalated when your younger brother took his life in 2012.  Drugs also enabled you to work long hours, as I said earlier.  However, you have now been abstinent for over two and a half years.

14You were assessed recently by a psychologist, Mr Luke Armstrong, who considered that at the time of the offending you most likely filled the criteria for a polysubstance problem, classified as stimulant, opioid and anxiolytic disorder, with accompanying withdrawal symptoms and alcohol use disorder as well.  You were able to keep this from your wife, whom you had met in 2010.

15Your brother was 19 when he died, having experienced drug-induced psychosis.  Sadly, he took his life while he was awaiting treatment.  You consider that you never properly grieved for him as you were working interstate at the time.  Your drinking increased and you started using ice and the isolated life of your workplace in Western Australia exacerbated your need for both substances.

16When you established your business in 2014 you worked very long hours and increased your use of stimulants.  You became addicted to opioids and were prescribed medication such as Xanax.  You told Mr Armstrong that on the day of the offending you had not slept for three days and had used ice.  You were experiencing withdrawal effects of heroin and craved more of it, and because of your increased tolerance you believed Ms Knight had sold you heroin that was cut.  When she denied that, you attacked her.

17You told Mr Armstrong that you are disgusted with yourself for what you did and that it was against the values you were brought up with.  In a letter you wrote to the court you said you cannot forgive yourself and you are very sorry for the pain and suffering you have caused Ms Knight.  Several of those who have written references for you refer to your remorse and I accept that this is genuine.

18You pleaded guilty in November 2020, not at an early stage but deserving of a sentence discount because of its utilitarian value in avoiding a trial and, importantly, avoiding the need for witnesses to have to give evidence at a trial.  The plea is particularly important at this time when the court is dealing with problems in listing trials owing to the COVID-19 restrictions.

19Mr Armstrong identified a depressive personality with its origins in your developmental history, meaning chiefly your father being largely absent and your attachment to your mother being interrupted by being sent to live with your grandmother.  Your isolated adolescent years led you to be influenced by a deviant peer group, quite inconsistent with the law-abiding, faith-based family from which you came.  You were driven to succeed at your work and this became a compulsion to work very long hours, which you facilitated through drug use.

20The need for specific deterrence is somewhat reduced in your case.  You have been separated from your family whilst on remand for two years and nine months, knowing that your wife is caring alone for the children, who are aged seven and five, and fending for herself financially.  This is your first time in custody.  For the last 12 months the COVID restrictions have prevented visits, required you to stay in your cell for 20 to 21 hours per day, sharing your cell with another prisoner, and allowed only one Zoom call per week to contact your wife and children.  You have not seen them in person for a year.  I am told that you will be granted 283 emergency management days because of these restrictions, something which is done administratively. 

21As to your prospects for rehabilitation, I start with mentioning the fact that in 2008, some 12 years ago, you were placed on a community correction order without conviction for quite different offending, burglary and theft.  You completed that order and I place no weight on that past offending.  Apart from the current matter you have not otherwise come to the attention of the police.  There is no violence of any sort in your background and you are regarded generally as a man of gentle disposition.

22You have used your time in custody well under difficult conditions and have achieved 11 negative random drug screens.  There has been a delay since the second offending date in 2018, the first offending having occurred almost two years before that.  None of the delay has been your fault and I take that into account.

23Your education and intelligence, your work history and ability to earn a good living, combined with remorse and insight into your offending, indicate good prospects for rehabilitation.  Additionally, you have a supportive extended family and your wife and children to return to.  The reduced need for specific deterrence and your good prospects for rehabilitation are subject to your ability to avoid drug taking.  The indications are that that is the only possible impediment to the risk of offending again and it cannot be totally disregarded.

24The need for general deterrence is of particular importance in a case of repeated drug trafficking, some of which set the scene for the very nasty and serious attack on Ms Knight.  The court must sternly denounce such criminal acts and the message must be that serious acts which cause injury and those which perpetuate harmful drug abuse in the community will be harshly punished.  I take into account the need to avoid double punishment in circumstances like this.

25Mr Tausinga, I sentence you to the following terms of imprisonment.  For Charge 1, five years' imprisonment.  For each of Charges 2 and 3, two years.  For each of Charges 4 and 5, three years.  The sentence for Charge 1 will be the base sentence for the purposes of cumulation.  I order that six months of the sentence for Charge 2 and nine months of each of the sentences for Charges 4 and 5 be served in cumulation upon the base sentence.  That results in a total effective sentence of seven years.  I order that you serve four years before being eligible for parole.

26You have been in custody for 993 days by my calculation, which is about two years and nine months.  I declare this time to be reckoned as already served and I shall note it on the court record.  If the authorities allow you emergency management days which currently amount to 283 days, you would be eligible for parole earlier, but as Mr Gumbleton submitted, you will have time to complete any courses that are deemed necessary.

27If you had pleaded not guilty to these charges I would have sentenced you to eight years' imprisonment with a non-parole period of five years.  There will be an order for disposal of drugs as sought by the prosecution, and I do not think I had noted whether there was consent to that, Mr Zayler?

28MR ZAYLER:  There is consent, Your Honour.

29HER HONOUR:  Thank you.

30MR ZAYLER:  What was the sentence for Charge 3 again, Your Honour?  I missed what Your Honour said.

31HER HONOUR:  Two years.  I will read them all again if you like.

32MR ZAYLER:  No, just the charge – two years, and what part of that was to be cumulative?  My addition somewhere is wrong.

33HER HONOUR:  Six months of the sentence for Charge 2 but Charge 3 is concurrent.

34MR ZAYLER:  Concurrent.  That's where I got it wrong.  Thank you.  Yes, that's consented to, the disposal order, Your Honour.

35HER HONOUR:  Thank you.  Anything further?

36MR CECIL:  I understand, Your Honour, there were two summary offences.

37HER HONOUR:  Yes.

38MR CECIL:  In the overall scheme of things they were overlooked.  I would ask that that be sent back to the Magistrates' Court.  I can't say whether or not they will be proceeded with but I'll be talking to my friend about that at some stage.

39MR ZAYLER:  I think it's somewhat unfortunate they were overlooked, Your Honour, but others were involved rather than myself in that process.  I think we will need to negotiate and see what we can do about that.

40HER HONOUR:  Very well, thank you.  I am just reminded I will keep the link open in case you, Mr Zayler, want to speak to Mr Tausinga on the link, I will give you that opportunity.

41MR ZAYLER:  We would appreciate that.  Thank you, Your Honour.

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