R v Folauhola
[2020] ACTSC 341
•12 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Folauhola |
| Citation: | [2020] ACTSC 341 |
| Hearing Date: | 12 October 2020, 16 December 2020 |
| Decision Date: | 16 December 2020 |
| Before: | Elkaim J |
| Decision: | See [32] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – occasioning grievous bodily harm – guilty |
| pleas | |
| Legislation Cited: | Crimes Act 1900 (ACT) s 25 Criminal Code 2002 (ACT) ss 308, 312 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 33(1)(o) |
| Parties: | The Queen (Crown) Atunaisa Folauhola (Offender) |
| Representation: | Counsel |
| J Hiscox (Crown) F Purnell SC (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
| File Numbers: | SCC 81 of 2020 |
| ELKAIM J: |
1. On 17 August 2020 the offender pleaded guilty to three charges on an indictment dated 14 August 2020.
2. The three offences and their maximum penalties are:
(a)
Aggravated burglary with intent to commit an offence and in company with another person, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty
is 20 years’ imprisonment, a fine of $320,000 or both.
(b) Occasioning grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.
(c) Theft, contrary to s 308 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both.
3. The offences occurred on 7 December 2019 at the home of a Mr Christopher Elliott. The three crimes were part of the same incident of criminal activity. Accordingly there will need to be a substantial amount of concurrency in the individual sentences in order to respect the principles of totality and avoid an overly long sentence.
4. Based on the Statement of Facts, which contains the detail, a summary of what occurred is as follows. The offender and Mr Elliott had a common associate, Mr Saipani. The latter person thought that Mr Elliott was indebted to him. Mr Elliott had recently recovered his
car from Mr Saipani. Some of the offender’s belongings were inside the motor car.
The offender went to Mr Elliott’s house. He knocked on the door. After a brief time,
instead of waiting patiently, the offender went through the garage and tried to open an internal side door into the house. Despite resistance from Mr Elliott the offender forced
the door open and demanded his keys and “stuff”. Mr Elliott did not immediately respond.
The offender began to strike him. Mr Elliott gave the offender his keys, but this did not abate the attack. Rather it continued and the offender demanded papers from Mr Elliott and anything else that he desired.
6. The assault continued in the kitchen with the offender hitting Mr Elliott about the head.
The offender ripped a camera monitor from the wall, took Mr Elliott’s car keys and phone
and then went to the bedrooms. Mr Elliot escaped despite the interference of an unknown
male. This person and the offender then left taking with them Mr Elliott’s phone, keys,
and assorted other items.
7. The injuries that had been suffered by Mr Elliott were significant. They included a right- sided displaced comminuted orbital floor fracture, a right sided orbital medial wall fracture, fractures to the nose and assorted instances of bruising and lacerations. The injuries required admission to Canberra Hospital and subsequent surgery.
A report from Dr Van Diemen describes Mr Elliott’s injuries and poses a number of
possibilities about ongoing pain and discomfort and the onset of Post-Traumatic Stress
Disorder. I do not know if any of these consequences have materialised.9. The matter first came before me on 12 October 2020. On that day the offender gave evidence as did his partner, Ms Lofi Sauiluma and her mother, Ms Vasa Sauiluma. Following their evidence an application was made for the offender to be referred for an assessment for an Intensive Corrections Order (an ICO).
10. My initial thought and my specific perception following the evidence of the offender was that an ICO would not be appropriate. He was a particularly unimpressive witness. I found much of what he had to say difficult to accept, if not simply unbelievable. I thought his
tendering of a letter and cheque to be sent to Mr Elliott to be a measure ‘dripping’ with
cynicism.
11. In relation to his explanation of the events he said that he allowed two months to pass before visiting Mr Elliott notwithstanding that he was convinced Mr Elliott had the keys to his motor vehicle which he, consequently, could not drive. His motor vehicle was being used by him for family services, so why he would not have taken action earlier is beyond me. He could have quite easily reported the matter to the police who presumably would have asked Mr Elliott about the matter and probably resolved the issue. I have the strongest suspicion that he did not contact the police because of unknown issues not placed before the court.
12. In respect of the letter it emerged that the idea came from his legal advisers. If there had been genuine remorse he could easily have written to Mr Elliott some time ago. I do however accept that the offer of $1000 is an indication of an acceptance of responsibility.
Another matter where the offender’s evidence was difficult to accept concerned his
consumption of alcohol. He said in evidence that he had stopped drinking altogether. His partner said he was limiting his alcohol intake, which is the same answer given to the authors of the Pre-Sentence Report. When I pointed this inconsistency out to Senior Counsel I was told there was a distinction between him saying in the witness box that he had stopped drinking alcohol and perhaps limiting his alcohol prior to giving evidence. I thought this distinction depended more on semantics than substance.
14. Unlike the offender, his partner and her mother were impressive witnesses. They struck me as honest people doing their best to bring up three very small children in difficult circumstances and within the constraints of limited resources, made even more limited by the effects of the COVID-19 pandemic.
15. Because the effects on the family of an offender can be legitimately considered (s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT)), I took the view that I should at least make the referral for an ICO Assessment. The Crown did not oppose the referral but said today that it maintained its position that a sentence of full-time imprisonment was appropriate.
16. An ICO Assessment Report, dated 11 December 2020, says that the offender is suitable for an ICO. The assessors were confronted with the same dichotomy of thought that I had experienced, comparing the offender with his criminal history to the more beneficial aspects of his case, mostly derived from his mother and partner. The report says:
Mr Folauhola has a violent criminal history, ongoing anger issues and associations with anti- social peers. He has some protective factors in accommodation, employment, and pro-social support of his mother and partner. It appears Mr Folauhola has a positive attitude towards his current bail supervision, given his attendance for interviews and cooperation with the assessment and preparation of this report. Mr Folauhola has expressed a willingness to make positive changes in his life and has made some efforts in this regard by engaging with Everyman Australia and OzHelp to address his self-regulation and mental health, respectively. Mr Folauhola has provided negative urinalysis tests recently, which demonstrated ability to maintain abstinence. However, given his criminal and substance abuse history, it is recommended he develops a relapse prevention plan and makes efforts to disassociate with antisocial peers. It remains a concern that Mr Folauhola minimised and justified his offending behaviour.
17. Consistent with the above comments I have been provided with letters from the above two organisations. EveryMan Australia says:
Mr Folauhola is addressing anxiety, anger and other emotional regulation, stress issues and he said he has stopped consuming alcohol. He stated that he is committed to continuing to change his behaviour and to make better decisions. He said that the basis for doing so was by putting his family and work first and by stopping alcohol. He said that he felt he had matured.
Mr Folauhola has engaged with me and this agency in a conscientious and respectful manner. He stated that he has accepted responsibility for his actions which led to his presence in court. He has expressed remorse to this author and said that his awareness of the impact of his awful decisions and consequent actions has been the catalyst for him to continue to change in the manner outlined in the previous paragraph.
18. The letter from OzHelp says:
Mr Folauhola presented with a sense of ownership of what he has done along with expressions of remorsefulness. He indicated that he is grateful for the help he has received, particularly from his family. Mr Folauhola reported on his sense of passion for rap music and is planning to use it as a platform to give voice to what he has been through, in order to help others.
Mr Folauhola presented with a compelling commitment to rebuild his life, along with a growing sense of optimism for his future that includes helping others. I believe that a favourable outcome from his upcoming court proceedings would fuel this optimism. If Mr Folauhola was to serve a term of imprisonment as a result of the upcoming court proceedings, I believe it would be a major dampener on his motivation to move forward with his life and help others. It would also have serious flow-on consequences for his family with reciprocating effects on Mr Folauhola.
Breaking into another person’s house, even with a perceived justification of recovering
one’s own goods, is never justified. Beating up the owner of the house is even less
justified. I regarded these two offences as being of medium objective seriousness. The
theft is objectively less serious, and towards the minor range.20. The offender has a significant criminal record. A lot of it concerns driving offences but there is a conviction for assault occasioning actual bodily harm in 2017. The offender received a prison sentence of four months but it was suspended immediately. I pointed out to Senior Counsel that he did not seem to have taken any lesson from this experience. This was against the background of him having said in his evidence that the two months he had spent in prison as a result of the current offences had had a marked effect on him.
21. I accept Senior Counsel’s observation that it was actually being in prison that made the
difference. Nevertheless he plainly did not learn from his earlier conviction.
22. The offender was born in 1997 in Victoria. He has three siblings and six half siblings. He had a good upbringing although his father was hard on him and his twin brother. He was sometimes physically and verbally abusive. The offender remains in positive contact with his mother.
23. The offender is in a relationship which has produced three children. The offender takes part in the raising of the children.
24. The offender completed Year 12 although he was frequently suspended for bad behaviour. He was better at sports and achieved a representative status in AFL. He has worked in the construction business in Canberra.
25. Despite his denials the offender uses cannabis. He previously had a problem with alcohol but says that he has significantly reduced his consumption. He is physically and mentally well. He has attended a course to address anger management. He has been assessed as having a medium risk of general re-offending. This seems to stem from his anger problems and associations with unseemly people. On the other hand he is in a stable relationship, has the support of his mother and has assumed a responsible attitude towards the upbringing of his children. There has been no contravention of his bail conditions.
26. Both parties have referred me to a number of roughly comparable cases, although it must always be remembered that each case must be decided on its own facts.
27. I must also have regard to the pleas of guilty which were entered after a criminal case conference. With some rounding off, I think a discount of 15% is appropriate. This discount has been factored into the sentences I will impose.
28. Generally speaking it is important to take into account the Crimes (Sentencing) Act 2005 (ACT), in particular ss 6, 7, 10 and 33. As to s 10, bearing in mind the objective seriousness of the offences, and the need for both general and specific deterrence, a term of imprisonment is inevitable.
29. The question is how the term of imprisonment should be served, and whether an ICO is a suitable means of serving the term. I frankly admit that when I made the referral for the assessment I regarded it as most unlikely that I would proceed along that course. However the report, together with the supporting and consistent letters has led me to change my mind. If the offender has genuinely changed his attitude and genuinely wishes to live a crime free life supporting his family then I will give him the opportunity to do so. He of course will know that any breach of the ICO, or the commission of further offences, will most likely result in him living at the AMC.
30. The offender was arrested on 25 January 2020. He was granted bail on 25 March 2020. He has spent 61 days in custody associated with the current offences.
31. The imposition of an ICO does not allow me to backdate the starting date for the sentences. However I take into account that he has served about two months in custody.
32. I make the following orders:
(a) For Count 1, aggravated burglary (CC1426/2020), the offender is sentenced to 2 years’ imprisonment to commence today and end on 15 December 2022.
(b) For Count 2, occasioning grievous bodily harm (SCCAN2020/124) the offender is sentenced 2 years’ imprisonment to commence on 16 December 2021 and
end on 15 December 2023.
(c) For Count 3, theft (CC1427/2019), the offender is sentenced to 6 months’ imprisonment to commence today and end on 15 June 2021.
(d) The total period of imprisonment is 3 years to commence today and end on 15 December 2023. (e) The sentence of imprisonment is to be served in the community by way of an Intensive Corrections Order. The court notes the recommendations made in the ICO Assessment Report dated 11 December 2020 as to rehabilitation. I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.
Associate:
Date: 16 December 2020
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