R v Chatimba (No 2)

[2021] NSWSC 863

Supreme Court

New South Wales

Medium Neutral Citation:

R v Chatimba (No 2) [2021] NSWSC 863

Hearing dates:

24 June 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Sentenced to a term of imprisonment comprising a non-parole period of 15 years and 9 months commencing 11 August 2018 and expiring 10 May 2034 and a balance of term of 5 years and 3 months expiring 10 August 2039.

Catchwords:

CRIMINAL LAW – Sentence – Murder – Offender found guilty at trial – Where jury rejected self-defence and excessive self-defence – Stabbing outside home in St Clair – No intention to kill – Assessment of objective seriousness somewhat below the middle of the range – Provocation not established – Prior good character and very limited criminal record – Good prospects of rehabilitation – Acceptance of responsibility for actions and genuine remorse – No special circumstances – Sentence imposed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Aslan v R [2014] NSWCCA 114

R v Halloun [2014] NSWSC 1705

R v Hill (1981) 3 A Crim R 397

R v RJB [2019] NSWSC 719

R vYavuz (No 6) [2019] NSWSC 95

Category:

Sentence

Parties:

Regina (Crown)
Nathan Chatimba (Accused)

Representation:

Counsel:
B Hatfield (Crown)
A Evers (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Bannisters Lawyers (Accused)

File Number(s):

2018/247460

Judgment

1. On 11 August 2018 at Dutch Place, St Clair, the deceased, Peni Apikotoa, was stabbed in the left upper chest and left shoulder, in the forearms and in the right wrist by Nathan Chatimba. Mr Apikotoa bled profusely and died, outside the door of 1 Dutch Place, before paramedics arrived.

2. Mr Apikotoa was called Benni by his family and friends. Without disrespect, I shall in these remarks refer to him as Benni as well as Mr Apikotoa. Benni’s death was a tragedy, a very great human tragedy, for his family, his friends and all involved in this sad matter. These remarks, however, must focus on the events of 11 August 2018 and the circumstances in which they occurred as well as the offender’s circumstances. This is not to diminish the importance or value of Mr Apikotoa’s life and I shall return to that matter later in these remarks.

3. On 6 April 2021, a jury of 12 found Mr Chatimba guilty of Mr Apikotoa’s murder. Mr Chatimba now stands to be sentenced for that offence.

4. The maximum sentence for murder is life imprisonment, and there is a standard non-parole period of 20 years. The Crown does not contend that a sentence of imprisonment for life should be imposed. [1] Nor do I consider that a life sentence is warranted in the present case.

   1. Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. One of my tasks in sentencing the offender is to make findings of fact as to what occurred. These findings must be consistent with the jury’s verdict. The facts I find against the offender must be found beyond reasonable doubt but the facts found in favour of the offender need only be found on the balance of probabilities. Applying these principles, I have concluded that what occurred was as follows.

The facts

Background

6. For some time, the offender and Mr Apikotoa had known one another. Mr Apikotoa had assisted the offender to find work in the scaffolding industry, in which they both worked. They were friends and had friends in common.

7. Prior to early 2015, the offender was for some years in a relationship with Ms Kathrine James and he has two children with her. At all the relevant times, Ms James has lived in St Clair.

8. In about early 2015, after leaving Ms James and commencing a relationship with Ms Cassandra Sanders, the offender moved in with Ms Sanders and lived at 7 Dutch Place, St Clair. They had two daughters, the elder born in 2016 and the younger in 2018.

9. Towards the end of 2017, the relationship between the offender and Ms Sanders deteriorated and, by about January 2018, they had separated. The offender moved out of 7 Dutch Place and resumed his relationship with Ms James.

10. At the trial, an issue arose as to whether the offender had been personally violent towards Ms Sanders in about September 2017 and been involved in incidents involving violence in January 2018. The offender was not charged with any offences in relation to these incidents. In my view, the evidence did not permit me to make any findings as to whether or not personal violence was inflicted and I have not taken these incidents into account against the offender in sentencing him for murder. Nonetheless, I accept the offender’s contention that, on thoese occasions, Mr Apikotoa believed he should intervene in the domestic relations between the offender and Ms Sanders and did so. There was, however, no suggestion that any intervention involved violence between Mr Apikotoa and the offender.

11. In early February 2018, Ms Sanders left 7 Dutch Place with her first daughter and moved into a women’s refuge. She did not tell the offender where she was going or provide him with contact details.

12. In March 2018, the offender’s and Ms Sanders’ younger daughter was born.

13. On 19 April 2018, the offender met his six week old daughter for the first time with Ms Sanders at a shopping mall.

14. From April to August 2018, the offender was in regular contact with Ms Sanders and their two daughters. From time to time, the two daughters or one or other of them would spend the night at the home which the offender shared with Ms James and their two children.

11 August 2018

15. During the day of 11 August 2018, the offender and Ms Sanders had been in contact with one another by telephone to make arrangements for the offender to collect one or both of the children and take them to spend the night with him.

16. In the late afternoon or early evening of 11 August 2018, the offender drove to 7 Dutch Place in Ms James’s Ford Falcon and parked in the driveway. At this time, the offender was disqualified from driving and subject to a s 10 bond as a result of a previous conviction for driving whilst disqualified.

17. The offender went inside the house. There was a discussion with Ms Sanders about taking his daughters for the night. The discussion became somewhat fraught. During the discussion at 6:10 PM, Ms Sanders’ telephone rang but she did not answer it. The telephone call was from Mr Apikotoa. His name, Benni, was displayed on the mobile handset when he rang.

18. Benni was, at this time, at the Blue Cattle Dog Hotel in St Clair, having arrived there in the mid-afternoon. He had been drinking in the beer garden with friends who included, during the time he was there, Mr Morrisby, Ms Grant (Mr Morrisby’s wife), Mr Lindsay, Mr Lewis, Mr Bemrose and Mr Folan.

19. Mr Apikotoa had arranged to go to dinner with his partner, Ms George, but that arrangement was cancelled when Benni indicated that Mr Bemrose and his wife would come to dinner as well, and Ms George and Mr Apikotoa argued about this. Mr Apikotoa responded angrily to Ms George during their communications. At some point, Mr Apikotoa arranged that Mr Lindsay would drive him to dinner.

20. Back at 7 Dutch Place, the offender asked why Ms Sanders did not answer the telephone when it rang. He saw Benni’s name on the screen. He questioned why Benni was ringing Ms Sanders. At the offender’s insistence, Mr Apikotoa was contacted on Ms Sanders’ telephone and the offender confronted Benni as to why he was calling Ms Sanders and as to whether there was anything going on between Ms Sanders and Mr Apikotoa. There was not just one telephone call but a number of angry telephone calls and attempted calls at this time.

21. While these telephone conversations were going on, just before Mr Apikotoa left the Blue Cattle Dog Hotel, he told Mr Morrisby that he was worried about a friend who he believed was going to be bashed by her ex-partner and that he was worried about the welfare of her children. It will be recalled that Benni had intervened previously in relations between the offender and Ms Sanders.

22. Mr Apikotoa left the hotel and was being driven by Mr Lindsay to dinner when another one of the telephone calls involving the offender, Mr Apikotoa and Ms Sanders took place. Mr Lindsay overheard parts of the conversation including Mr Apikotoa saying “Put him on the phone, where are you, call the police” and “if you do anything to her, I am going to get you”. Mr Lindsay noted that Mr Apikotoa sounded angry during the telephone conversation. Shortly after, Mr Apikotoa asked Mr Lindsay to change direction and drive him to Ms Sanders’ home in St Clair. Benni explained to Mr Lindsay that he believed that a female was in trouble and was getting beaten up. Mr Lindsay drove Mr Apikotoa to Dutch Place. I accept that Mr Apikotoa was angry as a result of what he thought was occurring.

23. I pause here because there is a dispute between the Crown and the offender as to why these telephone calls occurred.

24. The Crown contended that I should find that, as a result of Mr Apikotoa’s call to Ms Sanders, the offender became jealous of Mr Apitkotoa and accused Ms Sanders of having a relationship with him and questioned her as to whether her daughters were his children or Benni’s and, despite Ms Sanders’ attempts to reassure him that she and Benni were just friends, the offender did not accept this. It was said that, because of his jealousy of Mr Apikotoa, the offender became angry.

25. The offender submitted that the offender was not jealous of Benni but rather was hurt by him because Benni was his friend but had obviously been in contact with Ms Sanders and had not told him where his children were, during the period between February and April 2018 when the offender was not able to contact Ms Sanders or see his children. It was also said that the offender was hurt by Mr Apikotoa because he apparently believed the lies Ms Sanders told him about the offender.

26. Despite some inconsistencies in, and some other difficulties with, her evidence, I accept that Ms Sanders was a witness who was attempting as best she could to give truthful evidence. I also accept that her evidence was generally reliable. When her evidence was inherently credible or supported by independent evidence, I had no reason not to accept it. I also accept the evidence of the witnesses from the Blue Cattle Dog Hotel as truthful and reliable.

27. From Ms Sanders’ evidence, the telephone records and the evidence as a whole, I am satisfied beyond reasonable doubt that as a result of Mr Apikotoa’s initial, unanswered call to Ms Sanders, the offender became upset and angry that Benni was calling his former partner and the mother of his two daughters. I am similarly satisfied that as a result of what was said during the telephone conversations the offender remained angry. The evidence does not permit me to find whether this was because the offender was jealous or was hurt.

28. I also find beyond reasonable doubt that during the telephone conversations between the offender, Mr Apikotoa and Ms Sanders that evening, the offender, acting in anger, threw a mobile telephone and hit Ms Sanders on the face causing bruising and swelling as depicted in photographs taken later that evening by police. The injury amounted to actual bodily harm.

29. Despite Ms Sanders’ trying to persuade Benni not to come to 7 Dutch Place during the calls, by the end of the telephone calls:

1. Mr Apikotoa was angry and had formed the view that the offender had harmed or might harm Ms Sanders and was coming to 7 Dutch Place to protect her and her children and to confront the offender; and

2. The offender was angry and knew that Mr Apikotoa intended coming to 7 Dutch Place to confront him out of concern for Ms Sanders’ welfare.

30. A short time after the telephone calls, the offender took a 33 cm kitchen knife from a box in the hallway of the house at 7 Dutch Place. He either kept that knife on his person or put it outside near the location of the gate on the driveway leading to the house. It is not possible on the evidence to determine which of theose occurred.

31. Also after the telephone calls, Mr Lindsay dropped Mr Apikotoa off in Dutch Place and drove away as Mr Apikotoa had told him. Benni left his sunglasses, wallet, hat and telephone in Mr Lindsay’s car. I infer that Mr Apikotoa expected to engage in a physical confrontation and was angry. He had also consumed a very substantial quantity of alcohol resulting in a blood alcohol reading of 0.186 g/100 ml, when the autopsy was conducted. Such a reading indicated that at the time he arrived at Dutch Place, Mr Apikotoa’s decision-making, judgement and motor co-ordination were substantially impaired, although he did not show obvious, visible signs of drunkenness.

32. At about this time, the offender was outside the house carrying his elder daughter. Ms Sanders was also outside carrying the younger daughter. She was crying and upset. They were arguing about which car the child’s car seat would go in.

33. Mr Apikotoa reached the driveway of 7 Dutch Place and started to walk up the driveway towards the location of the gate.

34. There was another dispute between the parties as to what occurred at this point. The Crown contended, based on Ms Sanders’ evidence, that when Benni arrived, the offender gave the elder daughter to Ms Sanders and went down the driveway towards Mr Apitokoahim, while Ms Sanders took the two children inside and closed the door. Ms Sanders’ evidence at trial was to the effect that before shutting the door she saw the two men start fighting and downward punches being thrown by the offender. It can be noted that, in cross examination of Ms Sanders, it was in effect established that she had not said that she saw the start of the fight in her initial interview with police or in her first statement, although she did mention seeing an exchange of blows in her second statement.

35. The offender contended that when Mr Apikotoa walked up the driveway, the offender walked down to meet Benni holding his elder daughter. This was based on the offender’s accounts given in interviews with the police and in the recorded conversation with Ms James, while he was in custody. The offender’s version was to the effect that, when he had walked down, Mr Apikotoa gave him a quick jab to the left eye while the offender was still holding his elder daughter. The offender put his daughter down on the ground and asked Ms Sanders to take her. When Mr Apikotoa continued to come towards him swinging, the offender grabbed the knife.

36. There was no other witness who could give evidence concerning these events.

37. As I have already explained, I generally accept Ms Sanders’ evidence. In this instance, her evidence that the offender put his elder daughter down prior to walking down towards Mr Apikotoa was inherently credible, especially given what the offender knew about Benni’s intentions and the fact that the offender had taken the knife outside (whether on his person or left near the location of the gate).

38. I find the offender’s account in his interviews and the conversation with Ms James inherently incredible. If his account were true:

1. Mr Apikotoa punched a friend holding an 18 month old child, when one of his concerns was the welfare of this child and her sister; and

2. The offender had time, after being punched in the eye, to put his daughter down, turn around and see Ms Sanders was there behind him, ask her to take the child and then grab the knife, before Mr Apikotoa continued his attack.

39. In addition, the offender not only admitted to lying to the police in his initial interview but his evidence in his second interview, especially concerning the knife being outside because it had previously been used to cut rope, was inconsistent with his comments to Ms James, in their recorded conversation. In that conversation, the offender said that he found the knife in a drawer in the hallway and left it outside.

40. In all the circumstances, I do not accept that the offender was generally truthful in his accounts of what occurred. I only accept what he said when it is supported by other independent evidence.

41. Having regard to the evidence as a whole, I find beyond reasonable doubt that as Mr Apikotoa was walking up the driveway towards the location of the gate, the offender gave his elder daughter to Ms Sanders and walked towards Mr Apikotoa while Ms Sanders took the two children and went inside the house. As to whether Ms Sanders observed the start of the fight, I accept that her evidence in the interview with police on the night of 11 August 2018 and her statement given that same night were not complete. When that evidence was obtained, however, she was, at least, very upset and distressed. Her later statement and her evidence in Court were not, in my view, rendered unreliable because she had not referred to seeing the start of the fight in her earlier interview and statements. I accept that Ms Sanders saw the two men fighting initially.

42. In light of Ms Sarah Stonestreet’s evidence that, at the relevant time, she heard an altercation and a male saying “Do you want to have a go?” and the offender’s account that Benni said “Do you want to have a crack?”, I find that Mr Apikotoa said words to that effect. On the evidence, however, it is not possible to determine whether this was a challenge by Mr Apikotoa to the offender to fight or whether it was a response to aggressive words or actions by the offender indicating that Mr Apikotoa was prepared to fight if the offender wanted to.

43. Furthermore, in my view the evidence as a whole does not allow me to determine who threw the first punch or struck the first blow. Nor does it allow me to determine how and when the knife came into the offender’s hand from where it had previously been, either on his person or at a location near the gate.

44. At some point during the altercation in the driveway of 7 Dutch Place, the offender stabbed Mr Apikotoa at least once and, after an unknown time, drips of blood fell on the ground. The drip trail of blood commenced a few metres toward the roadway from the location of the gate and continued down the driveway and across the turning circle at the end of Dutch Place to the house at 1 Dutch Place where Mr Apikotoa eventually died. In all, Mr Apikotoa suffered six stab wounds but it is not possible to determine at what locations andor in what order the stab wounds were inflicted.

45. When the offender and Mr Apikotoa were about halfway across the turning circle, they were observed by Mr Shane Stonestreet, who had been called outside by his mother, Ms Sarah Stonestreet, and was standing about halfway down the driveway of 6 Dutch Place. The offender submitted that Mr Stonestreet’s evidence should be considered in light of the fact that his capacity to observe events was limited by the lighting, his considerable distance from the two men and the limited time he was able to observe them. It was also submitted that Mr Stonestreet’s recollection was influenced by his later acquired knowledge that the man he saw running backwards in the fluoro vest had been stabbed and died.

46. Mr Stonestreet’s evidence included his oral evidence and the evidence given in a video walkthrough at the scene. While it can be accepted that the lighting was limited, he was some distance from the two men and the events he saw were over in a short period of time, I found his evidence was credible, measured, suitably qualified and detailed. It was not suggested his evidence was untruthful. He did not seek to exaggerate or embellish his observations. For example, while he said he saw the downward striking motion of the offender’s knife, he also gave evidence that he was not certain whether the knife made contact with Mr Apikotoa at that time. In addition, he indicated with his hand, in the video, that the knife was being held, at least at some time, with the blade pointing up towards the sky. There was nothing, in my view, in the evidence to suggest that Mr Stonestreet was influenced by his being told later that the man in the fluoro top whom he observed was stabbed and later died. I accept that Mr Stonestreet’s evidence was both truthful and generally reliable.

39. Mr Stonestreet initially saw the offender in about the middle of the turning circle chasing Mr Apikotoa who was running backwards, with his hands defensively up at the level of his head. They were about a metre apart. Mr Stonestreet described the offender “going at” and “charging at” Mr Apikotoa. At some point, he also saw that the offender was holding a knife. By the time the two men were near some wheelie bins at the far side of the turning circle, Mr Stonestreet saw the offender swinging the knife towards Mr Apikotoa at least twice. When the offender was swinging the knife, the two men were “right next to each other”. I do not accept the offender’s contention that the distance between the two men did not change while Mr Stonestreet was observing them. Thisat was inconsistent with Mr Stonestreet’s evidence that initially they were about a metre apart but when the offender was swinging the knife, they were right next to one another. Furthermore, in his evidence on the page of the transcript [2] relied upon in the offender’s written submissions to support this contention, Mr Stonestreet did not agree that the distance between them did not change.

    2. Tcpt, 12 March 2021, p 266(23-50).

40. The blood trail continued across the turning circle of Dutch Place and became heavier in the region of the bins. The evidence did not permit me to determine whether the blood trail became heavier in this location because further wounds were inflicted in this area, as the Crown contended, or because Mr Apikotoa spent more time in the area or because there was an increase in blood loss from his wounds there or for some other reason.

41. Mr Apikotoa stumbled over the bins and left his blood on the side of one of the bins. At that point, the offender turned around to face towards Mr Stonestreet and the driveways of 8, 7 and 6 Dutch Place, which were next to one another. Mr Stonestreet also turned away, went inside and locked the door. Ms Sarah Stonestreet called 000.

42. The blood trail indicated that Mr Apikotoa then made his way to the front door of 1 Dutch Place, which was to some extent obscured from view from the street. He banged on the door and called for an ambulance. He was bleeding profusely. The occupant, Ms Bracken, called an ambulance but, by the time the paramedics arrived, Mr Apikotoa had died.

43. Meanwhile, the offender had moved back and reached the driveway of 8 Dutch Place, about five metres away from the front door. The occupant of number 8, Ms Haddad, opened the front door, having heard a commotion. She saw the offender and recalled that he said to her: “Call the ambulance, I stabbed my brother‑in‑law". He was holding a knife in his right hand “above his head facing the sky”. It appears Ms Haddad might have been mistaken that the offender said “brother-in-law” but, otherwise, I accept her evidence. She went back inside and called 000.

44. The offender’s counsel submitted that the offender pursued Mr Apikotoa across the turning circle because he thought Mr Apikotoa needed assistance and was trying to assist. This was said to be consistent with Ms Haddad’s evidence of the offender asking her to call an ambulance. Having regard to what Mr Stonestreet observed and taking into account the evidence as a whole, including Ms Haddad’s evidence, I am not persuaded on the balance of probabilities that at the time the offender was pursuing Benni across the turning circle and when they were near the wheelie bins that the offender was trying to assist Mr Apikotoa. What was seen by Mr Stonestreet provided no substantial support for such a finding. When Benni stumbled around the bins and then headed off in the direction of 1 Dutch Place, the offender did not follow him in order to render assistance. The offender turned around and faced towards 8, 7 and 6 Dutch Place and then went to the driveway of 8 Dutch Place. By the time he spoke to Ms Haddad, I accept that he had started to have an appreciation of what he had done to Mr Apikotoa but this does not establish that when pursuing Benni across the turning circle, the offender was trying to help him. In summary, I do not accept that the offender was attempting to assist Mr Apikotoa before the offender turned away and headed back towards 8, 7 and 6 Dutch Place. At that point, the realisation of what he had done probably began to dawn on the offender and, as a result, he did ask Ms Haddad to call an ambulance, thus seeking to render assistance.

45. The offender made his way back inside 7 Dutch Place and put the knife in a cardboard box. After an interaction with Ms Sanders which indicated that he had an appreciation that he had stabbed Benni, the offender took his elder daughter, went outside, got into the Ford Falcon with his child and drove back to Ms James’s house. There was no other conduct whereby the offender sought to render assistance to Mr Apikotoa.

46. Sometime after he arrived at Ms James’s, the offender took a photograph of his face. It was said that this photograph showed some bruising to the area of the offender’s left eye. I have viewed the photograph as well as the photographs (including enlargements) taken of the offender later that night when he was taken into custody. I have also had regard to the evidence of the police officers who observed the offender at that time. There was no medical evidence as to whether the offender was suffering from any injury at that time. In the circumstances, I am not prepared to find, even on the balance of probabilities, that there was an injury to the offender. If I were wrong as to that, any injury was very minor and not one that would likely have been caused by a significant blow to the offender’s face. Furthermore, if there were an injury, the evidence does not permit me to find on the balance of probabilities how or when the injury occurred.

47. At some time after the photograph was taken, the offender gave the bloodied jersey that he had been wearing when he stabbed Mr Apikotoa to Ms James, knowing that she was going to put it in the washing machine to wash it, which she did. He also wiped the blood off his work boots in the bathroom with baby wipes. The Crown submitted that I should find that this was all done with the intention of concealing evidence from the police and take that into account. The offender was not, however, charged with any offence based on concealing evidence and I do not accept that this conduct should be taken into account when sentencing the offender for murder, and I do not do so.

The deceased’s injuries

56. The autopsy carried out by Dr Szentmariay determined that the cause of death was multiple stab wounds. It was also recorded that Mr Apikotoa was 170 cm tall, weighed 112 kg, and had a blood alcohol concentration of 0.186 g/100 ml.

57. Mr Apikotoa suffered six stab wounds. The fatal wounds were the 6 cm deep wound to the left upper chest which severed the left vertebral artery and the 7.5 cm deep wound to the left shoulder which partially dissected the left axillary artery. The other wounds were:

1. a 2.5 cm deep wound to the left upper chest;

2. a 2 cm deep wound to the left forearm;

3. a 8 cm deep wound to the right forearm; and

4. a u-shaped wound to the right wrist, measuring 5 cm x 5.5 cm.

58. In addition, there was a vertical superficial cut to the back left shoulder which was 7.5 cm in length.

59. There were corresponding cuts to the fabric of Mr Apikotoa’s clothing, except in relation to the injuries to thehis forearms since he was wearing a short-sleeved shirt, as depicted in the footage from the CCTV at the Blue Cattle Dog Hotel.

60. It was not possible to determine, on all the evidence, in what order or specifically how the wounds were inflicted.

Other relevant circumstances

61. The other circumstances relevant to the offending in the present case are as follows. The offender did not intend to harm anyone when he attended 7 Dutch Place on 11 August 2018. It was, however, the offender’s angry response to seeing that Benni was calling Ms Sanders that eventually led to the events which occurred later that evening.

62. The jury’s verdict is consistent with the offender having the intention, when the fatal blows were inflicted, either to kill the offender or only to inflict really serious bodily harm or injury. The Crown contended that I should find beyond reasonable doubt that the offender intended to kill Mr Apikotoa. The offender’s counsel submitted that I should find that the offender only intended to cause really serious bodily harm. Having regard to the evidence as a whole and the inferences available on that evidence, I am not persuaded to the relevant standard that the offender intended to kill Mr Apikotoa. In thoese circumstances, the jury’s verdict compels me to find, and I do, that the offender’s intention at the relevant time was to inflict really serious bodily harm to Mr Apikotoa.

63. The jury’s verdict precludes a finding that the offender armed himself with the knife and stabbed Mr Apikotoa acting in self-defence.

64. Counsel for the offender contended that provocation[3] was a mitigating factor in the present case. The conduct said to amount to provocation was identified as Mr Apikotoa initiating the fight by saying “Do you want to have a go [or a crack]” and punching the offender in the eye.

    3. Within s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

65. I have already explained that the words “Do you want to have a go [or a crack]” may amount to a challenge to fight or a response to aggressive words or conduct by the offender indicating that Mr Apikotoa was prepared to fight if the offender wanted to and that it was not possible to determine on the evidence which was the case. I have also explained that I could not find on the balance of probabilities that Mr Apikotoa initiated the fight, whether with a jab to the offender’s left eye or otherwise. Consequently, I am not satisfied that the offender has established that the conduct relied on as provocation occurred or that Mr Apikotoa’s words amounted to provocation. Accordingly, I am not satisfied that provocation has been established as a mitigating factor in this case.

Objective seriousness

66. A further task that I must perform is to form an assessment of the objective seriousness of the offending in this case.

Submissions

67. The Crown submitted that, given the circumstances as the Crown contended they should be found, the offending fell above the midrange of objective seriousness.

68. The offender’s counsel submitted that the offence was towards the bottom of the range of the very serious offending which is inherent in an offence of murder. Although the offender relied on all the relevant circumstances in making this submission, his counsel specifically drew attention to the following matters in summarising his position:

1. the offender’s intent was only to cause to Mr Apikotoa really serious bodily harm and the harm was at the lower end of what falls within that category;

2. the intent was quickly formed and quickly went away;

3. his offending was in response to a provocation, impulsive and not well thought out;

4. the injuries could have been inflicted in very quick succession over a short period of time; and

5. even though the offender availed himself of a very substantial weapon he did not use that weapon with forethought.

Consideration

69. For the reasons I have already given, I do not accept that the offending conduct was in response to provocation.

70. I have rejected the Crown’s contention that the offender intended to kill Mr Apikotoa. Furthermore, the offender’s intention to inflict really serious bodily harm did not arise any substantial time before the altercation between the two men and that the altercation was over in a short time. Soon after the altercation, the offender did seek assistance for Mr Apikotoa by asking Ms Haddad to call an ambulance although he took no further steps to assist after that time.

71. There was some degree of forethought in relation to the use of the knife, in that the offender found the knife and took it outside before Mr Apikotoa arrived. There was, however, no other substantial planning or forethought involved. I also accept that the offending was impulsive and not well thought out, and happened over a short period of time in effectively only one episode.

72. Finally, in reaching my conclusion as to objective seriousness, I have taken into account all of the circumstances and findings which I have to already mentioned at some length except that I have not taken into account, for this purpose, those matters which are personal to the offender or are not integral to the offending itself. I include in the matters not taken into account, by way of example but without attempting to be exhaustive, the fact that the offender was on conditional liberty at the time of the offending.

73. Both the Crown and counsel for the offender framed their submissions as to the objective seriousness of the offending by reference to a notional scale of objective seriousness. Adopting that same approach, in my view the offending falls somewhat below the middle of the range of seriousness for this offence.

Aggravating and mitigating circumstances

74. The Crown contended that there were two aggravating factors within the relevant provisions of the Crimes (Sentencing Procedure) Act:

1. the offence involved the use of a weapon, namely the knife; [4] and

2. the offender was on conditional liberty at the time because he was subject to a s 10 bond for a traffic offence. [5]

   4. Section 21A(2)(c) of the Crimes (Sentencing Procedure) Act.

   5. Section 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

75. As to the use of the knife, I have already taken this into account in assessing the objective seriousness of the offence. Whilst it is an aggravating factor, it is not appropriate to double-count this factor by also assessing the use of the weapon as aggravating the offence.

76. I take into account in determining the appropriate sentence that the offender was, at the time of the offending, subject to a s 10 bond for driving while disqualified. However, the difference between the offending as a result of which the offender was subject to the bond and the offence for which he is being sentenced is, in my view, so significant that this aggravating factor deserves very little weight.

77. Although there are other matters that could be matters of aggravation, such as that the offence involved the actual use of violence, I have not taken any of these matters into account as aggravating factors because they are integral to the offence itself. [6]

    6. In light of the concluding words of s 21A(2) of the Crimes (Sentencing Procedure) Act.

78. As to mitigating factors under the Crimes (Sentencing Procedure) Act, the offender contended that provocation[7] was such a mitigating factor in this case. As I have already explained, I have not found that there was, as a matter of fact, any provocation by Mr Apikotoa. Accordingly, provocation is not a mitigating factor that I have taken into account in sentencing the offender.

    7. See s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.

79. There are additional matters that may be mitigating factors in the present case such as whether the offender does not have any significant record of previous convictions[8] is a person of previous good character,[9] is unlikely to re-offend in the future,[10] has good prospects of rehabilitation,[11] or has shown remorse for the offence. [12] I shall return to these matters when considering the offender’s subjective case.

The offender’s subjective circumstances

8. Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act.

9. Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act.

10. Section 21A(3)(g) of the Crimes (Sentencing Procedure) Act.

11. Section 21A(3)(h) of the Crimes (Sentencing Procedure) Act.

12. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act.

Personal background

80. The offender is a 34 year old man who was born in Zimbabwe. His parents were not married and separated prior to or soon after his birth. He initially lived with his mother but after she repartnered, he was taken to live with his father and stepmother when he was about the age of six or seven. He lived with his father and stepmother, together with his stepbrother and stepsister, until the age of 21.

81. His family left Zimbabwe in the early 2000s and moved to England where the offender completed his schooling. In about 2007, the family moved to Australia, initially living in Cobar as his father was employed in the mining industry. Eventually, the offender moved to North Queensland and then settled in Sydney in about 2008 when he met Ms James.

The psychologist’s report

82. The offender relied on a psychologist’s report of 20 June 2021 from Ms De Santa Brigida. She assessed the offender via AVL on 21 May 2021 and 7 June 2021 and had a face-to-face assessment with him on 18 June 2021.

83. In her initial comments, the psychologist noted that the offender expressed to her his remorse, stating “I’ve seen his family, he was an only son, a lot of pain for his family, a big loss for them. I’m sorry this happened.”

84. As to his conduct while in custody, it was noted that the offender has had three jobs working in the laundry, working in buy-up and as the POD sweeper.

85. The psychologist recounted the offender’s family background and, in particular, noted that his mother had died in 2015 at the age of 42 from cancer.

86. As to his childhood, she noted that the offender stated that he did not have the best life. It was reported that when his mother remarried, she took him to be cared for by his maternal grandmother. It was said that they were poor, living on the charity from other villagers and he was treated like an orphan by other children. He also reported that his grandfather lived with his grandmother and “he would drink a lot and pass out, sometimes he would hit me”. This appears to relate to the period before he went to live with his father at about the age of six or seven.

87. It was also reported that when the offender was living with his father and stepmother “life wasn’t very good. She was nasty and treated me differently”. There was one particular incident reported by the offender which the psychologist recorded as follows:

“… when he was around age 9 or 10, his maternal uncle’s wife would take him for holidays in their family unit. She had a stepdaughter Tatenda, aged 9 or 10, who was from her husband’s previous marriage. [The offender] stated that one week after he returned from holidays with them, his auntie killed Tatenda by drowning her.”

88. As to the offender’s education, she recorded that the offender completed up to year 9 in Zimbabwe and was not in trouble for misbehaviour. He completed years 10,11, 12 and 13 in England and was not suspended or expelled, did not truant and did not stay out after curfew without parental permission. While at school, he played soccer and was involved in boxing.

89. When the offender and his family moved to Australia, he secured employment for eight months in Cobar and afterwards was employed initially as a subcontractor and eventually as a services manager until 2015, when he left this position after the death of his mother because he was so depressed. He then obtained work in the scaffolding industry.

90. No significant substance abuse history was reported.

91. The psychologist noted that the offender had been exposed to significant trauma during his childhood years, as referred to above, and she administered the PTSD checklist for DSM – 5 (PCL – 5). That checklist is a 20 item self-report measure that assesses the 20 symptoms of post-traumatic stress disorder. The offender’s score indicated underlying trauma and Ms De Santa Brigida asserted that he met the criteria for the diagnosis of PTSD.

92. In cross examination on this topic, the psychologist said that the offender completed the checklist concerning matters such as the extent to which in the past month he had been bothered by “repeated disturbing and unwaonted memories of the stressful experience” and “repeated, disturbing dreams of the stressful experience”, without being instructed as to which stressful experience was being referred to. She also said that she determined, by questioning after the checklist had been completed, which stressful experience the offender had been referring to when he completed the checklist. Her evidence was that on all occasions the offender was referring only to his childhood trauma and not any trauma associated with the murder. This seemed to me to be unlikely in light of his statements in his letter to the Court that:

“it was and still is a regrettable day August 11, 2018 for I relive it in my dreams and struggled to go by daily thinking of what I could have done different…”.

93. It was also concluded that after the death of his mother, in 2015, the offender met the criteria for a major depressive disorder with the differential diagnosis of complex bereavement disorder.

94. The psychologist also opined that, on the basis of her testing, the offender’s replies and participation in the assessment were genuine.

95. Applying the Violent Offender Treatment Program Risk Assessment Scale (VORAS) and the Level of Service Inventory – Revised (LSI – R), which are tools for assessing the risk of reoffending, the psychologist concluded that the offender fell within the low – moderate range for the risk of future violent offences and in the low – moderate range for overall risk/needs assessment.

96. In her oral evidence, Ms De Santa Brigida explained that a person who suffers from PTSD is likely to be hypersensitive to threatening situations and the person immediately goes into fight, flight or freeze mode. She also anticipated that the offender would display a hypervigilant response with symptoms such as anxiety and hyperarousal but somebody who is hypervigilant would not necessarily be aggressive or prone to violent behaviour.

97. Notwithstanding the unsatisfactory aspects of her evidence, I am prepared to accept that the offender suffers from PTSD to some extent as a result of his childhood experiences.

98. I note that the psychologist did not opine in her report that the offender’s PTSD or the depression suffered as a result of his mother’s death were, in the present case, causally related to the offending. This appeared to me to be consistent with her oral evidence. In the circumstances and in accordance with the relevant principles[13] , I do not accept that the offender’s mental health conditions had the effect of reducing his moral culpability to any significant extent. Nonetheless, it appears to me that the offender’s appropriateness as a vehicle for general deterrence is slightly diminished, his time in custody may well weigh more heavily on him and the need for specific deterrence is reduced to a limited extent, because of his PTSD and depression. To that extent, I have taken those matters into account in determining the appropriate sentence.

    13. As explained by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33] and [34].

The offender’s letters

99. The offender wrote a letter to the Court in which he expressed his sorrow and deepest sympathy for the loss of Mr Apikotoa and described how he relived 11 August 2018 in his dreams and struggled to get by daily thinking of what he could have done differently. The letter concluded:

“I just wish I can go back and change things, my mate would still be here, his family wouldn’t be in this room with me like this.”

100. In addition, the Court was provided with a letter that the offender wrote to Mr Apikotoa’s family. In the letter, the offender expressed in heartfelt terms his sorrow and regret for what he did and acknowledged the pain and suffering that Mr Apikotoa’s death has caused to his family and friends.

References and letters of support

101. The offender also relied on references and letters of support from:

1. his father, Robin Chatimba;

2. the offender’s uncle, Simon Matabva;

3. his partner, Kathrine James;

4. his stepsister, Hillary Chatimba;

5. a long-term friend, Phyllis Manoah;

6. a friend, Jye Hellmann;

7. his stepbrother, Lincoln Chatimba;

8. a long-term friend, Kelvin Machakaire;

9. a long-term friend, Edna Chidoori; and

10. a cousin of the offender’s father and a father figure to him, Bowen Muvhimi.

102. This material also provided some information as to the offender’s background. The letters also attest to his being a decent, caring person and a loving father. Many of them record the offender’s expressions of remorse and his acknowledgement of the devastating effect Mr Apikotoa’s death has had on his family. They also express the view that the offending was out of character and will not happen again, as well as speaking generally of the support these persons are willing to provide to the offender.

103. Where these letters state views as to what occurred on 11 August 2018, I have disregarded that material. Otherwise, I have read and taken into account thoese references and letters of support.

Previous good character and criminal record

104. The material before the Court establishes that the offender was previously of good character. I am also satisfied that his very limited criminal record, which did not involve any offences of violence, was not significant. I have taken these factors into account in mitigation of his sentence.

Likelihood of re-offending

105. Bearing in mind the nature and circumstances of the offending and Ms De Santa Brigida’s risk assessments, I am satisfied that the likelihood of the offender committing another offence of violence in the future is relatively low, although in forming this opinion I have noted that, while in custody, the offender has been punished with three days in the cells for fighting or other physical combat on 24 November 2020. Notwithstanding the incidents in custody, the sentence has been ameliorated to an extent by the relatively low likelihood of reoffending.

Prospects of rehabilitation

106. Given the offender’s history of generally continuous employment prior to the offending, his employment while in custody and the support available to him from his partner, family and friends attested to in the references and letters of support, in all the circumstances, I accept that the offender has good prospects of rehabilitation and that this also mitigates the sentence.

Remorse

107. The offender’s letter to the Court, his letter to Mr Apikotoa’s family, the references and letters of support and the psychologist’s report all record expressions of the offender’s sorrow and remorse.

108. Remorse in a case such as this is to be taken into account only if:

1. the offender has provided evidence that he has accepted responsibility for his actions, and

2. he has acknowledged the injury, loss and damage caused by his actions. [14]

   14. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act.

109. The offender did not give sworn evidence during the sentence hearing. Nonetheless, in light of all the material before the Court I am prepared to accept that the offender has shown that he has accepted responsibility for his actions. I do not think that pleading not guilty and seeking to rely on self-defence at his trial means that the offender does not now accept that he is responsible for Mr Apikotoa’s death as a result of what the offender did on the evening of 11 August 2018.

110. The offender has also, in my view, acknowledged in his letters the injury, loss and damage his actions caused, especially to Benni’s family, partner and friends.

111. Finally, I am satisfied that the offender’s remorse is genuine and it should be taken into account to ameliorate the sentence.

Other considerations

112. In considering the appropriate sentence, I have also taken into account the additional hardship likely to be encountered in custody by the offender as a result of the ongoing COVID-19 pandemic.

113. The Crown in its written submissions referred to two cases[15] that bear some similarity to the present and noted the sentences imposed in those cases. There are obvious differences between, and some features in common in, those cases and the present matter.

     15. R v RJB [2019] NSWSC 719 and R v Yavuz (No 6) [2019] NSWSC 95.

114. I have taken those cases into account, noting the similarities and differences, along with a consideration of the purposes of sentencing[16] namely: to ensure adequate punishment of an offender; to prevent crime by deterring the offender and others from committing similar offences; to protect the community from the offender; to promote the offender’s rehabilitation; to make the offender accountable for their actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of the offender. [17] In addition, I have had regard to the statutory guideposts of the maximum sentence and the standard non-parole period, to which I have already referred.

     16. See s 3A of the Crimes (Sentencing Procedure) Act.

     17. Section 3A of the Crimes (Sentencing Procedure) Act.

115. No party submitted that I should make a finding of special circumstances in the present case souch as to support a variation of the statutory ratio of the non-parole period to the head sentence. [18] The period of parole calculated by reference to that ratio will be adequate to assist the offender to reintegrate into the community on the completion of his non-parole period. There are no other sufficient circumstances that have not already been taken into account to find special circumstances.

     18. As provided in s 44(2) of the Crimes (Sentencing Procedure) Act

Victim impact statements

116. The Court heard and read victim impact statements from Mr Apikotoa’s sister, CMDR Rosemarie Apikotoa RAN, his late father Mr Tapu Apikotoa, his sister Ms Karen Apikotoa and his mother Mrs Kalemela Apikotoa, as well as his former partner, Ms Rachel George. Those statements made clear that the death of the deceased has caused extensive harm and distress to them.

117. The Crown, in its written submissions, applied for the Court to consider the impact of Mr Apikotoa’s death as disclosed in the victim impact statements when determining an appropriate punishment for the offender.

118. The use that may be made of victim impact statements is governed by the Crimes (Sentencing Procedure) Act. [19] Victim impact statements may, in certain circumstances, be taken into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim’s death on the victim’s close family and wider circle is an aspect of harm done to the community.

     19. Relevantly s 30E(3) of the Crimes (Sentencing Procedure) Act, which substantially re-enacted provisions previously found in s 28(4) of that Act.

119. Courts have said in the past that it seems unthinkable that receiving and taking into account victim impact statements reflects an acceptance by Parliament that some lives are more valuable to the community than others. Rather, they should be seen as an important mechanism for ensuring that the evidence of family victims is placed before the court to give real content and texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. [20]

     20. Based on the comments of McCallum J (as her Honour then was) said in R v Halloun [2014] NSWSWC 1705 at [46] in relation to s 28(4) of the Crimes (Sentencing Procedure) Act.

120. I accept, in the present case, the Crown’s submission that “a greater sentence cannot be imposed because of the impact on the victim's family”. Nonetheless, I consider it appropriate to take into account the victim impact statements that were read to the Court so as to recognise that the harm done to the Mr Apikotoa’s parents, sisters and partner ares an aspect of harm done to the community. The punishment for homicide does not vary according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve, as in this case, as a useful and powerful reminder of the quality of human life itself, and of all that is involved in taking it away. [21]

     21. Adapting the words of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402.

Additional remarks

121. Therefore, before formally announcing the sentence of the Court, it remains to acknowledge the death of Peni Apikotoa as a human and personal tragedy, rather than it being treated only as the subject of a criminal trial. The evidence in this matter confirmed that he was a dutiful son and brother, open and outgoing, a gentle man who was a loyal and supportive friend to many, a man who was ready and willing to assist those in need. Benni’s unnecessary death in such distressing circumstances has devastated his family and those others who loved him and has been a great blow to them as well as to his friends, his workmates and his acquaintances.

122. The Court extends its very sincere sympathy for their loss to his family and all those affected by Mr Apikotoa’s death.

Sentencing

123. In determining the appropriate sentence to be imposed on the offender, it is to be borne in mind that the offence of murder involves the criminal violation of the sanctity of human life. Any conviction for murder warrants a substantial sentence because the purposes of denunciation, punishment and general deterrence are of significant importance. Ultimately, the sentence to be imposed must appropriately reflect the gravity of the offence.

124. In addition to the murder charge, the offender has been charged with a related offence of assault occasioning actual bodily harm to Ms Sanders, for which the maximum penalty is five years’ imprisonment. [22] That offence related to the offender’s throwing a mobile telephone at Ms Sanders and hitting her.

     22. See s 59(1) of the Crimes Act 1900 (NSW).

125. For the reasons I have already given, I am satisfied beyond reasonable doubt that the elements of that offence are made out. Accordingly, I find the offender guilty of that offence. In light, however, of the gravity of the offence of murder for which I am passing sentence and the significant length of the sentence to be imposed for that offence and bearing in mind the principles of totality and proportionality, it does not appear to me to be necessary or appropriate to impose an additional penalty for the related offence. Accordingly, under s 10A of the Crimes (Sentencing Procedure) Act, the offender is convicted of that offence but I decline to impose any other penalty.

126. The offender has been in custody since he was arrested on 11 August 2018 and it is appropriate that the sentence commence on that date.

127. Taking into account all the relevant facts, including the subjective circumstances of the offender, and having regard to the purposes of sentencing and the other applicable principles as well as the statutory guideposts of the maximum penalty and the standard non-parole period, I determine that the appropriate sentence is imprisonment for 21 years, made up of the non-parole period and the balance of the term of imprisonment.

128. Therefore, Nathan Chatimba, for the murder of Peni Apikotoa you are sentenced to imprisonment for a non-parole period of 15 years and 9 months commencing on 11 August 2018 and expiring on 10 May 2034 and a balance of term of 5 years and 3 months expiring on 10 August 2039.

129. You will not be eligible for release on parole before 10 May 2034.

130. I am obliged to warn you that having been convicted of murder, which is a serious violence offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), the State of New South Wales can make an application prior to your sentence expiring that you should continue to be detained or else that you should be subject to an extended supervision order impacting on your liberty, notwithstanding the completion of your sentence.

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Endnotes

Decision last updated: 19 July 2021