R v Kaveni Luvu Moro

[2016] NSWDC 288

District Court

New South Wales

Medium Neutral Citation:	R v Kaveni Luvu MORO [2016] NSWDC 288
Date of orders:	08 July 2016
Decision date:	08 July 2016
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	See orders [37]-[40]
Catchwords:	CRIMINAL – sentence after trial – grievous bodily harm with intent to cause grievous bodily harm– assault occasioning actual bodily harm – related summary offences of common assault – serious domestic violence offences – lengthy criminal history for similar offences
Legislation Cited:	Crimes Act 1900 ss 33(1)(b), 59, 61 Crimes (Sentencing Procedure) Act 1999 s 10A Criminal Procedure Act 1986 s 166
Category:	Sentence
Parties:	Regina (Crown) Kaveni Luvu Moro (Offender)
Representation:	Mr J Bowers (Crown) Mr K Averre (Offender)
File Number(s):	2015/99923
Publication restriction:	Nil

Judgment

1. HER HONOUR: The offender is before me for sentence following his conviction before a jury after trial on three counts in an indictment dated 3 May 2016. They are as follows:

2. Count 1 - that between 1 March and 15 March 2015 he assaulted Voula Karamalakis thereby occasioning her actual bodily harm.

3. Count 2 - that between 1 March and 15 March 2015 at Woolloomooloo he caused grievous bodily harm to Voula Karamalakis with the intention of causing her grievous bodily harm.

4. Count 3 - that on 3 April 2015 he assaulted Voula Karamalakis thereby causing her actual bodily harm.

5. Counts 1 and 3 are brought contrary to s 59 of the Crimes Act 1900 and as such each carries the maximum penalty in this Court of 5 years imprisonment. They are both capable of being dealt with in the Local Court where the jurisdictional limit would be terms of imprisonment of 2 years.

6. Count 2 is brought contrary to s 33(1)(b) of the Crimes Act 1900 and as such carries a maximum penalty of 25 years imprisonment with a non-parole period of 7 years.

7. There are three other summary offences sent up to this Court pursuant to s 166 of the Criminal Procedure Act1986 as related offences for which I must sentence the offender. They are referred to as sequences 3, 4 and 5 and each of them is a charge of common assault contrary to s 61 of the Crimes Act 1900. They are summary offences which each carry a maximum penalty of 2 years in the Local Court.

8. The offender faced trial with a jury from 4 May 2016. The jury returned verdicts of guilty on all counts on 9 May 2016. He has remained in custody bail refused since these verdicts. The context for these offences I accept is that the offender and the complainant were in a relationship at the relevant time, living in accommodation in Forbes Street, Woolloomooloo. They had been together since about May 2014 and had moved into the apartment in February 2015.

9. Evidence given by the complainant at trial was that the relationship was dysfunctional. The jury’s verdicts I accept lead inevitably to a finding that in large part they accepted the complainant’s evidence. On that basis I accept that between February and April, whilst the complainant and offender were living together in this apartment in Woolloomooloo, the relationship was in fact dysfunctional and violent. The offender in fact gave evidence and denied all of this and specifically denied the charges and the allegations made against him by the complainant. Clearly enough, the jury must have rejected his evidence.

10. I accept from the complainant’s evidence that over this two month period he was violent towards her, he was regularly under the influence of Xanax and alcohol and other drugs and that in particular ways he attempted to control her and restrict her movements. This included taking away her mobile phone, taking away her medication, not allowing her to leave the house without him, making her stay awake for some days, specifically before count 3 in the indictment, and similar matters. His behaviour towards her was not only violent but very controlling.

11. The specific facts for count 1 are that on a day during the relevant period which eventually at trial, would appear to have been 6 March 2016, the offender and the complainant were in the apartment. The offender had called a girl on the telephone which provoked an argument between the two of them. There were three friends also with them, a woman and two men. The argument escalated to the stage where the complainant said she was leaving and the offender started hitting her. Specifically for this offence he hit her on her right cheek, just below her right eyeball, and I accept that she ended up on the floor. Three people who were there stood between him and the complainant and she then left with them. There was a photograph taken of her injuries some days afterwards which indicates there was still bruising around the right eye. It is a relatively serious example of an assault occasioning actual bodily harm. As for all of these offences, it was a domestic violence related offence. It was committed on the complainant whilst she was in her own home and entitled to feel safe there. The injury itself is certainly not minimal for an injury capable of being defined as actual bodily harm. The assault appears to have occurred in a fit of jealously and was brazen enough for it to have been committed in front of others who were present.

12. Count 2 is the most serious of the offences for sentence. It occurred the following day, again in the house. The complainant stayed away overnight after the first assault and came back the next day. There then ensued an argument between her and the offender, in which he accused her of infidelity overnight. Apparently without more, he then went to the knife block in the kitchen and took out one of the three smaller knives and approached the complainant. She ran to a couch in the apartment and curled up and he then stabbed her with the knife three times as she tried to avoid the attack. He stabbed her three times, she had three wounds, one to the right shoulder, one to the thigh and the third to her right calf. She was bleeding and the offender took off her clothes, ripped them up and used them to attempt to stop the bleeding. He did not offer any medical assistance for her, nor was any sought. When photographs were taken following the last of the offences, on

13. 3 April 2015 the scars were still evident. There were photographs of them tendered before the jury and evidence from the medical expert indicating that the scars were consistent with the history given by the complainant. They are far from being the most serious of injuries capable of falling within the definition of grievous bodily harm, but nonetheless there was still evidence of them by way of scarring when those photographs were taken.

14. It must follow from the lack of medical attention and the fact that they were largely healed by the time those photographs were taken, that they were not significantly serious injuries, albeit amounting to grievous bodily harm. There is no evidence to indicate that they have done anything else other than continue to heal and there is no evidence of any ongoing disability with the complainant as a result of these wounds. Nonetheless this is a very serious offence.

15. The offender, for no reason other than either real or feigned jealousy, because the complainant was away overnight, and for that in circumstances where she had escaped his violence the day before, fought with her and then stabbed her in her home three times. Objectively, it is a serious offence but it is below the mid-range in terms of objective seriousness for offences capable of being charged under this section, which of course covers a very broad range of factual circumstances. Nonetheless it is serious and must have been a matter that caused great concern to the complainant. By that stage, I accept that she felt like something of a captive which no doubt explains the fact that she took no immediate action following this particular offence.

16. The relevant facts for count 3, the third offence, are that on 3 April in circumstances where there had been ongoing aggression and violence since the stabbing offence, but where the parties had remained together, they came back to their apartment after they had been to Hungry Jacks. The offender refused to buy food for the complainant. She came back to the apartment where he was and he hit her with the TV remote control in his hands. He hit her on the head and that caused her scalp to bleed. There was a photograph of that injury at trial indicating a laceration at the top of her head which was still bleeding when she was seen by the medical people the following day. I accept from the evidence that she gave, that as soon as she came back into her apartment that day she was grabbed by the accused who started to assault her, including the one large blow that caused the injury to her scalp, the subject matter of count 3.

17. This too is a relatively serious example of assault occasioning actual bodily harm. It is an actual bodily harm that is towards the top of the range of offences capable of falling within that definition, amounting as it does to an open laceration which caused bleeding. Again the factors of aggravation include the fact that it was a domestic relationship and it was committed in her own home, apparently as a result of a previous trivial argument between the offender and the complainant.

18. Taken as a whole of course these are all serious offences. Regrettably the community at present is only too familiar with the very large number of domestic violence assaults that are occurring in the community, particularly those committed by men on women. The statistics indicate a number of women die each week as a result of domestic assaults. Sentences for offences involving domestic assaults should carry a very serious message to the community that these are not private matters, these are matters taken extremely seriously by the Courts, which will inevitably lead to long prison terms, particularly so where offences are as serious as that covered by count 2 here is concerned.

19. The legislature has seen fit to fix a 25 year maximum penalty for this particular offence and where appropriate a standard non-parole period of 7 years. They are both matters that I must bear in mind when fixing the appropriate penalty for that matter. It is, of course, an indication of how seriously the community takes all offences of violence, but particularly so offences of violence committed by those within domestic relationships.

20. I accept for this sentence that as a result of his controlling behaviour, the offender had largely rendered the complainant incapable of removing herself for any length of time from his influence and he must have been aware of that. He does not have the benefit of any discount for a plea of guilty because this matter went to trial and he was convicted by a jury. That of course does not increase the appropriate sentence, but it prevents him from any discount for the plea.

21. Turning to the subjective circumstances of the offender, I accept that he presents a very complicated picture to the Court. He is now 33. He was born in Australia of Fijian background. At the age of 3 he was taken back to Fiji by his grandparents, apparently after domestic violence between his parents in Australia. Unfortunately his grandparents died. He was brought back to Australia by his father when he was 17. He seems to have been abandoned here.

22. He then reconnected with his mother who had since gone to live in the United States and went to live with her there. He did not settle in the United States and gravitated into criminal behaviour. He, I accept, committed offences that led to his being imprisoned in the United States for 5 years. He was deported back to Australia when that term of imprisonment ended and so appears to have come back to Australia when he was 23, about 10 years ago. He has a significant criminal history, which is an important factor in this sentence. Since he returned to live in Australia he has mainly been in New South Wales, although there is one largely irrelevant entry on his Victorian record after his return. From 2008 however and continuing he has a very significant history of violence on his criminal record, a great deal of which is domestic violence related offending.

23. He has, I accept, served prison terms for these offences of violence, including for stalking and intimidating and common assault a term of 9 months; assault occasioning actual bodily harm, a term of 10 months; aggravated robbery, a term of 2 years; common assault, a term of 9 months and another common assault, a term of 10 months. As I have said much of that offending were for domestic violence related offences which gave rise then to apprehended violence orders. He has been dealt with for breaching those apprehended violence orders on numerous occasions, again leading to further periods of imprisonment.

24. The criminal history of the offender is a matter of some concern. It seems to me that it falls just short of being so significant that it ought be treated as an aggravating factor. However it is a significant matter to take into account in assessing real prospects of rehabilitation.

25. The offender, since being in custody on this occasion apparently, has been in the Long Bay Hospital. That would appear to be as a result of his psychiatric condition. Unfortunately exactly the nature of that condition is not clear from the evidence. The presentence report indicates that when he was released to parole in 2014 he saw a psychiatrist for bipolar disorder, although there is no clear indication that he suffers from that condition. He has also used methamphetamine on a number of occasions, including in 2014 and significantly at the time he committed the offences before me. It would appear that he was at the time using some prescribed mood stabilising medications but that he had stopped using those and was starting to use crystal methamphetamine.

26. He has a number of identified criminogenic needs according to Probation and Parole including, perhaps most significantly, the need to be monitored and treated for his psychiatric condition. He is currently being treated in the prison hospital with Seroquel, an antipsychotic medication. According to the history given to the psychologist in a report tendered on behalf of the offender, he has been diagnosed with depression. He tests as below average intelligence.

27. There is some glimmer of hope in that the offender has started to open up to those treating him to, in his own words, tell his story which more probably than not will assist his general rehabilitation by enabling those treating him to provide appropriate treatment. However it is a very difficult process for him and them. His background has been largely dysfunctional since he was a small child. More probably than not, he has never bonded appropriately with any of the adult figures in his life. He has been subject to violence and has enmeshed himself and his relationships in violence and drug taking. It would appear that he has never been properly treated for any of these factors in the past. He will need a relatively lengthy period of supervision in the community to deal with these issues, particularly his psychiatric condition, and drug counselling in an attempt to avoid relapse. His prospects of rehabilitation however are at best guarded, given his condition and the very lengthy history of violence. I have already indicated the sentence should indicate a degree of general deterrence and whilst his psychiatric condition may indicate a somewhat less emphasis on that, in the circumstances here, where his actual psychiatric condition is not clear, it is very difficult for that to be given much effect.

28. There are no issues of contrition and remorse for me to take into account, given that these were pleas of not guilty and as is his right, the offender still denies having committed the offences.

29. As I said there is no victim impact statement tendered. The complainant gave evidence at trial. She appeared to be relatively robust, although without doubt there would be ongoing psychological sequelae as a result of these offences. It is also clear from other material before the Court that she is a person with her own problems, but I accept from the most recent statement tendered that she has ended her relationship with the offender and wishes no more to do with him.

30. Taking all of those matters into account I have come to the conclusion that the assault occasioning actual bodily harm offences ought give rise to terms of imprisonment of 18 months. The more serious offence in my view, particularly bearing in mind the maximum penalty for it and the standard non‑parole period where that were appropriate, even though this is below the mid-range in terms of objective seriousness, it seems to me calls for an overall term of 7 years. I fix a non-parole period of 4 years on a finding of special circumstances.

1. The psychiatric condition;

2. The need for a longer than normal period of supervision in the community on parole and;

3. A degree of partial accumulation.

31. If each of those sentences was accumulated with the other, an overall term of 10 years would arise. That is too high in my view. The totality in my view ought give rise to an overall term of 8 years with an overall 5 year non-parole period. There will be some partial accumulation to give rise to that outcome.

32. I will deal with the ADVO order afterwards, but first the 166 matters. As I have said, there are three additional related matters sent up to the Court pursuant to s 166 of the Criminal Procedure Act 1986. They are all common assault offences. The first of those, sequence 3, seems to have been charged as a result of a statement made by the complainant of which she did not give evidence at trial. They were all admissible at trial as context evidence but in simple terms she did not repeat that part of her statement. In those circumstances, given that there is no admission by the offender for that offence, it must be dismissed which I will do.

33. Sequences 4 and 5 are events about which the complainant gave evidence and consistent with the jury’s verdict must have been accepted by them. One involves her being hit on the head with a suitcase handle in the unit during the same time period and sequence 5 involves her being punched by the offender outside a convenience store at around the same time as the third offence was committed, as the offender and the complainant were walking towards the Woolloomooloo Hotel and there was an altercation over cigarettes.

34. I have indicated to the parties that it is my view that these matters ought not be taking up the time of this Court. They are summary matters that almost form part of the overall offending, the subject matter of these trial offences. They could not in any way give rise to sentences that elevate the overall terms of imprisonment and it is my view that they would preferably be dealt with by being dismissed in the Local Court rather than clogging up the administration of justice in this Court, requiring separate sentencing, separate recording of statistics, separate entries into JusticeLink and all of those matters that are so time consuming in this Court. I am also concerned that they will, in due course, give a skewed result to domestic violence related offences because inevitably in circumstances such as this, where the Court is sentencing for far more serious offences and the offender is to spend a considerable period in custody the only available outcome for these much more minor summary offences will be a conviction without further order pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

35. It would be wrong for the statistics to indicate therefore that these Courts do not take domestic violence offences seriously but it is the only appropriate outcome in my view given the fact that this is part of the overall sentencing exercise. I will deal with sequences 4 and 5 in exactly that way, but I repeat it seems to me that these matters ought not be brought to this Court and it has the flavour of doing nothing more than trying to clear the books.

31. The offender spent 10 months in custody bail refused for these matters alone. It was in two periods, with a period in the community on bail, which was ultimately breached. Thus I will commence the sentence on 8 September 2015 to take into account his pre-trial custody. For those reasons I make the following formal orders:

32. Count 1 convicted, sentenced to 18 months fixed term imprisonment, commencing 8 September 2015, expiring 7 March 2017. I decline to fix a non‑parole period because this is part of an overall non-parole period.

33. Count 3 convicted, sentenced to 18 months fixed term, commencing 8 March 2016, expiring 7 September 2018. I decline to fix a non-parole period because this is part of an overall non-parole period.

34. Count 2 non-parole period 4 years, commencing 8 September 2016, expiring 7 September 2020 with parole thereafter of 3 years commencing 8 September 2020, expiring 7 September 2023 giving rise to an overall term of imprisonment of 7 years, commencing 8 September 2016, expiring 7 September 2023. I recommend that he be released to parole at the expiration of the non-parole period with the following conditions:

1. Supervision from Probation and Parole.

2. Referral for psychiatric treatment and medication.

3. Referral for drug counselling.

40. So as regards the apprehended domestic violence order, I decline to make an ADVO because of the length of the sentence, the fact that the interim order will be revisited by the Local Court on 21 October 2016 and there is no up to date evidence in relation to the complainant’s current state of mind.

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Decision last updated: 03 November 2016