R v Fetalaiga

[2020] NSWDC 874

District Court

New South Wales

Medium Neutral Citation:

R v Fetalaiga [2020] NSWDC 874

Hearing dates:

25 September 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Overall sentence imposed one of 3 years and 6 months with a non-parole period of 1 year and 9 months

Catchwords:

CRIME — Violent offences — Aggravated robbery — With corporal violence

CRIME — Violent offences — Aggravated robbery — In company

Legislation Cited:

Crimes Act 1900 (NSW) s 96

Crimes (Sentencing Procedure) Act 1996 (NSW) ss 3A, 21A

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Ae Lesley Mata’afa Fetalaiga (Offender)

Representation:

Counsel:
Ms A Hooper (Crown)
Mr B Snelling (Offender)

Solicitors:
Mr De Mattia (Offender)

File Number(s):

2019/290735

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender stands to be sentenced for an offence that on 17 September 2019 at Colyton, he stole a mobile phone from Viliami Palu, and immediately before and after the stealing he used corporal violence on Viliami Palu, and thereby wounded him. That is an offence under s 96 of the Crimes Act and it has a maximum penalty of twenty-five years imprisonment. There is no standard non-parole period.

2. The Offender also acknowledges his guilt and asks that I take into account an offence on a Form 1, being an offence that on 17 September 2019, he entered the dwelling house at 6 Kent Place, Colyton, with intent to commit the serious indictable offence of intimidation, with intent to cause fear of physical harm; in circumstances of aggravation, namely, that there was a person present within the dwelling house.

The Facts

3. The Facts of the primary offence are agreed and the following are taken from those facts:

4. Between midnight and 1am on Tuesday 17 September 2019, the victim, sixteen year old VP was on foot, and his friend, Shane Nicholson, was riding his bicycle around the streets of Colyton. The victim was riding ahead of his friend. He stopped briefly to go to the bathroom. When he got back on his bike and looked back to see where his friend was, he saw a man start running towards him who had come out of a white Commodore which was parked in front of a house with the number “3” on it.

5. The man caught up with the victim and grabbed the back of his jacket near the shoulders; he dragged the victim towards the house he had come from and knocked on the garage door. When the door opened he pushed the victim into the garage. As this was occurring the male was also yelling out, “Oh you want some too? You want some too?” to Mr Nicholson. Mr Nicholson rode back to his house and told the victim’s mother what he had seen, she then called the police.

6. When the victim was inside the garage the offender walked towards him. The first male directed the victim to walk through the door and into the lounge room and kitchen area of the house. When he walked through the victim noticed a third man. The third man asked the victim who he was and the victim answered and the male shook his hand. As this occurred a fourth male walked out of the bathroom into the lounge room area. The first man whispered something to the fourth man. The fourth man then approached the victim and said, “Who are you, did you touch my mate’s car?” Before the victim could respond the fourth man punched him twice in the face. The first man, and the offender, punched him once on the left side of the face above his jaw. Another man approached him holding a towball and hit the victim over the head twice. The victim was in so much pain he started to cry and felt like he was going to pass out. He was also bleeding from a cut above his right eyebrow. The offender told the victim to empty his pockets and take off his shoes. Fearing he would be assaulted again the victim complied with that demand. He removed his mobile phone and his keys from his pocket. The third male took the victim’s phone and asked for the PIN number. The victim gave it to him, again, fearful of what might happen.

7. A fifth male walked into the lounge room. The fifth male gave the victim a red towel and told him to, “Clean the blood off the floor.” When he was finished cleaning the floor the victim held the towel to his eye to stop the bleeding. He also noticed that he had started to cough up blood. The fifth man asked for the victim’s name and address. He asked for the friend’s name. The victim answered those questions, however, provided an incorrect surname for his friend. The males questioned whether the victim’s friend was gone and asked where he lived. They refused to believe the victim when he said his friend was homeless and lived with him. The victim was scared as the men were surrounding him and were armed.

8. One of the men struck the victim’s mouth with a set of blue pliars which cut the victim’s mouth and he immediately began to bleed. The third male went through the victim’s phone and said, “Anyone want a new phone?”. He then asked the victim how old he was and when the victim answered that he was sixteen the male concerned said, “Look Tim, I think he’s had enough.” The victim’s mobile phone began to ring and the victim recognised that it was his mother’s number but the men wouldn’t let him answer. After consulting each other the offender, however, handed the victim his phone and told him to call his mother to tell her he was all right. The victim called his mother and said he was just with friends. His mother said she was worried and was going to call the police. When he hung up the victim returned his phone to the offender. The offender told the victim to sit in the opposite corner of the room and after five minutes the offender approached the victim and asked him a question. The victim could not properly hear what was said and responded, “No.” In response one of the men hit the victim in the nose with the blue pliars. The victim’s nose began to bleed. The offender yelled, “I should cut off your thumbs and is there a small blade in the house? We should stab him before he leaves.” The fifth man told the victim, “Lucky you’re even leaving, and before you leave you’ve got to suck all our dicks.” The victim told the male to “Fuck off” before the male indicated he was only joking.

9. A few minutes later the offender told the victim to put on his shoes and follow him. The victim followed him out of the house through the garage into an undercover area. The first male followed them and told the offender, “There’s coppers down there, it might be red-hot, take him in the car”. The victim was directed back into the garage where all the men waited until the police left the street.

10. The first male and the offender escorted the victim back to their vehicle. The first male got into the driver’s seat. The offender directed the victim into the back driver’s side seat. He then sat opposite the victim in the back of the car. Once everyone was in the vehicle the offender asked the victim, “What happened tonight?” He was pleased when the victim responded, “Nothing.”. The victim then directed the men to his house. The victim was permitted to get out of the car once they reached his house. When he walked into the house he immediately lay on the lounge and floor, he was in a lot of pain and feeling unwell. His mother called the police; he got up and vomited in the bathroom.

11. A short while later the police arrived. They seized the red towel that was still in the victim’s possession, as well as his clothing. An ambulance arrived and took the victim to Nepean Hospital. He had the following injuries: a two centimetre wound on the right eyebrow extending to the subcutaneous tissue; a one centimetre nasal vestibule laceration; a laceration of one centimetre deep that did not traverse the entire nasal vestibule; and foci of haemorrhages within the left temporalis muscle.

12. Later that evening the victim’s mother received a text message from what was established to be the offender’s phone which said, “Hey is your son there? If he is, can you tell him to call me, I’m in Blacktown and he left his phone.” The victim’s mother did not respond to the message and over the next few hours she saw the car that dropped the victim off drive past the house a few times.

13. The victim’s friend, Mr Nicholson, told police he could show them the house the victim was dragged into and he directed them to 3 Thorpe Street, Colyton. The police identified two cars parked in front of the house; one of the vehicles matched the description of the car used to drive the victim home. Enquiries later revealed that the car was registered to a female relative of the offender. She stated the offender was in control of the vehicle that night.

14. The following day police attended the address, again for the purposes of conducting a search warrant. None of the victims who were there were arrested but the victim’s blood was found on a vice tool. While the police were searching those premises the offender was arrested for an unrelated matter and that is the matter I assume which is on the Form 1.

15. The offender participated in a record of interview with the police. He told the police the victim and his friend tried to go through his car so he gave him a hiding and took matters into his own hands rather than calling the police. I will not read out everything that is recorded in the Agreed Facts, I have had regard to it. He admitted he was the person who punched the victim in the eye. He punched him two or three times while the victim was standing against a wall. He acknowledged the victim was scared and he acknowledged he would have been scared if he was in the victim’s position. He said he only drove the victim home when he found out he was sixteen. He said to the police something he contradicted in his evidence which was that he was not affected by drugs at any point during the incident.

Objective seriousness

16. Turning then to my assessment of the objective seriousness of the primary offence.

17. It is obviously a serious one. It was committed in company with other men pursuant to a joint criminal enterprise. In terms of the violence administered by this offender, he punched the victim once to the left side of his face above his jaw. The victim was only sixteen years of age. One of the males involved in the offence hit the victim over the head with a towball; one can only imagine how painful that would be. It was this offender who told the victim to empty his pockets which held his mobile phone which was stolen. It was this offender who also threatened the victim with further violence. It appears from the content of the Facts that the offence was some type of payback or vigilantism for some perceived prior actions of the victim and a friend. The wound was fortunately not an extensive one but the whole incident would have been terrifying for the victim. I do note that the victim was driven home after the incident with the offender in the car but there was implicitly some continuing intimidation of the victim in terms of having him not report the incident to the police.

18. It has been held that the guideline in R v Henry can be considered in relation to an offence under s 96 of the Crimes Act, noting the guideline was in relation to an offence carrying a maximum penalty of twenty years, not twenty‑five years as here - the guideline concerned a late plea of guilty. In assessing the objective seriousness of the offence here I have only considered the objective factors referred to in the guideline. There was in my view limited planning; actual violence was inflicted on the victim, some specifically by this offender, as well as threats; a modest item, being a mobile phone, was taken.

19. I assess the objective seriousness of the offence as being below the mid‑range of objective seriousness but not towards the bottom of the range.

20. The Crown pointed to the fact the offence was committed in company as an aggravating factor under 21A of the Crimes (Sentencing Procedure) Act. I have considered that factor in my assessment of the objective seriousness of the offence in order to avoid double-counting.

Form 1 offence

21. The Form 1 offence itself is itself a serious offence. Essentially a home invasion type of offence which took place on the same day as the primary offence. Given there were different victims involved to the one involved in the primary offence, and the level of seriousness of the offence, it has some impact upon the sentence to be imposed on the primary count.

The offender’s subjective case

22. Turning then to the offender’s subjective case. His date of birth is 1 February 1995 so he is currently twenty-five years of age and was twenty-four as at the date of the offence. He is a relatively young adult offender, although perhaps at the upper age limit for that characterisation of his age. Generally speaking, when sentencing a young adult offender, it is more appropriate to give greater weight to rehabilitation and treatment than to denunciation and general deterrence.

23. The offender has a limited criminal history comprising traffic matters only; his limited criminal history entitles him to leniency in this sentence.

Family background

24. The offender and his mother gave evidence and a number of testimonials were tendered in the offender’s case. It is clear that the offender has come from a good home and had a stable upbringing. He has in the past been an active member of his church and engaged in overseas missionary work, although the evidence suggests that has not occurred for a few years. He has a five year old son although is separated from the child’s mother. He had maintained contact with his son up until the COVID-19 pandemic hit which brought an end to in-person visits in gaol.

Education and employment history

25. In terms of his education his evidence was that he essentially completed year eleven and then worked in warehouses and factories since leaving school.

Substance use

26. Despite what he is recorded, in the Agreed Facts as saying to the police when arrested, the offender’s evidence was that on the day of the offence he had used illegal drugs and over the course of the previous three years he had developed an addiction to a number of illegal substances. He said in his evidence that he believed he had now beaten his addiction, although experience suggests that once he is released into the community he is likely to find it difficult to stay away from such drugs without assistance. His insight into what it takes to overcome an addiction to illegal drugs is limited in my view.

27. There was no evidence as to why, given his apparently good background, he turned to illegal drugs, although he did say his drug use commenced after the collapse of his marriage. The fact that he committed the offence while under the influence of illegal drugs is not a mitigating factor. In cross-examination by the Crown he confirmed that the motivation for the offence appeared to be some type of revenge or vigilantism against the victim because of some perceived conduct by him.

Attitude to the offence

28. He gave evidence that he was now sorry for the victim of the primary offence, and for the victims of the offence on the Form 1. He gave evidence that he understood how scared the sixteen year old victim would have been. I think there is some genuine remorse shown by the offender, especially when I factor in his plea of guilty, however, I think he has limited insight into the impact of the offence on the victim.

Imposition of sentence

29. The plea of guilty was entered in the Local Court and I will allow the offender a 25% discount of his sentence for the utilitarian value of his plea. For the reasons I gave earlier I consider there is genuine remorse here. He is a relatively young man; has almost no criminal record and has substantial family support. I consider he has, in these circumstances, good prospects of rehabilitation. I am not persuaded that I should make a finding that he is unlikely to reoffend, much will depend upon how he deals with his drug issues when next in the community.

30. I am satisfied on the evidence, as I say, the offender has good prospects of rehabilitation; that his rehabilitation has commenced, although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole. I also note it is his first time in custody and I am sentencing him during the COVID-19 pandemic. He is also, as I say, likely to need assistance to stay away from illegal drugs when next in the community. For all of those reasons I propose to make a finding of special circumstances when fixing the non-parole period.

31. The offender has been in custody since 17 September 2019 and I will backdate the sentence to that date to take account of pre-sentence custody.

32. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Offences like the current one involving group violence are far too prevalent in our community. Offences involving stealing, accompanied with violence must be met with significant sentences to deter the offender concerned and others from such offending. Offences that involve some type of payback or vigilantism should also be met by significant sentences to deter people from committing such offences. The maximum penalty has been taken into account as a legislative guidepost.

33. The offender is convicted of the offence of stealing and immediately before and after the stealing, using corporal violence on the victim thereby causing a wound to the victim. Having regard to the offence on the Form 1, I impose a sentence consisting of a non-parole period of one year and nine months, and a balance of term of one year and nine months. That is a total sentence of three and a half years imprisonment. It commences on 17 September 2019 and expires on 16 March 2023. The non-parole period expires on 16 June 2021. The date that the offender is first eligible for parole is 16 June 2021. Whether he is in fact released to parole on that day is a matter for the State Parole Authority. That Authority will no doubt take account of his behaviour in prison in determining whether to release him on that date or some other date. So if you could just check that for me please? It is a total sentence of three and a half years with a non-parole period of one year and nine months. It commences on 17 September 2019. I have the sentence expiring on 16 March 2023 and the non-parole period expiring on 16 June 2021.

Orders

1. The offender is convicted of the offences to which he pleaded guilty.

2. Impose an aggregate sentence of 3 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months. The sentence commences on 17 September 2019 and expires on 16 March 2023. The non-parole period expires on 16 June 2021.

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Decision last updated: 22 March 2021