R v Maumaga LEIATAUA

[2008] NSWSC 170

CITATION:	R v Maumaga LEIATAUA [2008] NSWSC 170
HEARING DATE(S):	29 January 2008
JUDGMENT DATE :	28 February 2008
JUDGMENT OF:	Mathews AJ
DECISION:	In relation to offence of threatening injury to Fou Tuavao with intent to commit an indictable offence, sentenced to a fixed term of imprisonment of 2 years to commence on 11 March 2007 and to expire on 10 March 2009. In relation to the murder of Sharna De-Courcey, and taking into account the offence on Form 1, sentenced to imprisonment consisting of a non-parole period of 17 years, to commence on 11 September 2007 and to expire on 10 September 2024. The balance of term of imprisonment will be 6 years and 6 months, commencing on 11 September 2024 and expiring on 10 March 2031. The first date on which offender will be eligible for release on parole will be 10 September 2024.
CATCHWORDS:	CRIMINAL LAW - sentence - plea of guilty to murder and associated charges - ferocity and brutality of the killing an aggravating factor
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
PARTIES:	Regina (Crown) Maumaga LEIATAUA (Accused)
FILE NUMBER(S):	SC 2007/2709
COUNSEL:	M Barr (Crown) C Smith (Accused)
SOLICITORS:	S Kavanagh (Crown) SE O'Connor (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

Thursday 28 February 2008

2007/2709 R v Maumaga LEIATAUA

REMARKS ON SENTENCE

1 HER HONOUR: On 29 January 2008 Maumaga Leiataua pleaded guilty, on Indictment, to the following two charges:

First: that on 11 March 2007 he murdered Sharna De-Courcey.
Second: that on the same date he threatened injury to Fou Tuavao with intent to commit an indictable offence, namely wounding with intent to do grievous bodily harm.

2 In addition, an offence under Form 1 is to be taken into account when sentencing the offender on the murder charge. That offence is that on the 11 March he broke and entered the dwelling house of Sharna De-Courcey with intent to commit an indictable offence, namely malicious wounding, in circumstances of aggravation, namely that he was armed with an offensive weapon being a 20 centimetres long knife.

3 The background of the matter is as follows. The offender is a 41 year old Samoan who arrived in Australia from New Zealand in 2006. He had been married with two young children but was separated from his family well before the events in question.

4 In about September 2006 the offender entered into a relationship with the deceased Sharna De-Courcey who was then 20 years old. She also had two very young children. They terminated their relationship by mutual consent in January 2007. The offender at that time was living at Tregear, a western suburb of Sydney, with his brother, Joseph and his sister-in-law, Sina. The deceased was living in Whalan, about 15 minutes walk away. Immediately opposite the deceased’s home was the home of Sina’s sister, Fou Tuavao, who is the victim in relation to the second count in the Indictment.

5 On the evening of Saturday 10 March 2007 the offender, together with his brother and sister-in-law, were at a friend’s home where they consumed a considerable amount of alcohol. At about one in the morning the offender, together with his sister-in-law, Sina, went to the home of Sina’s sister, Ms Tuavao where the three of them continued to drink beer and spirits.

6 In the meantime the deceased had been out for the night with friends. She arrived home by taxi between four and five in the morning, accompanied by a male companion. By coincidence, the offender had, not long before, ordered a taxi to take him and his sister-in-law home. Thinking that this taxi was for him, he went outside and saw the deceased with her companion. He confronted them, at first with verbal abuse, but later physically taking hold of the deceased and shaking her. His sister-in-law intervened and pulled him away. The deceased and her companion then went into her home. The offender and his sister-in-law returned to Ms Tuavao’s home, opposite, where the offender consumed more alcohol.

7 Not long afterwards the offender and his sister-in-law left Ms Tuavao’s house and walked back to their home in Tregear. His sister-in-law went to bed. The offender collected a hammer and a knife from the laundry, put them in a backpack and jogged back to the deceased’s home. By this time it was about 6.30 in the morning.

8 Once at the deceased’s home, the offender collected a set of green plastic outdoor chairs and stacked them underneath the deceased’s bedroom window. He then used them to climb up to the window. He smashed the glass in the window, cutting himself in the process, and climbed into the bedroom. The deceased was alone there, as her companion had gone to the bathroom. The offender then proceeded to stab the deceased in the stomach. It was a very serious wound, exposing her intestines. He put the deceased in a headlock and pulled her towards the front door. At this stage her companion came out and saw them. Both the offender and the deceased were covered in blood. The offender was wielding the knife, so the companion did not try to intervene. Instead he ran outside to alert the neighbours.

9 At about this time the deceased managed to extricate herself from the offender. She ran across the road to Ms Tuavao’s house and banged on the side door. Ms Tuavao came out and saw the deceased covered in blood. She took the deceased by her arms and tried to pull her inside the house. However the offender, who had followed the deceased, grabbed her by the hair and pulled her backwards. The deceased tried to grab hold of the edges of the door frame but she fell to the ground, lying on her back with her head towards the offender. While she was in that position the offender stabbed her numerous times in the chest and stomach. Ms Tuavao was trying to pull the deceased by her legs into the home, and at one point the offender lunged towards her with the knife saying: “If you don’t move away and leave her I’ll kill you” or words to that effect. This constitutes the second offence charged in the indictment.

10 Not surprisingly Ms Tuavao did move away. The offender continued to stab the deceased in the area of her heart, moving the blade of the knife around and around. Ms Tuavao’s two children, aged 3 and 13, were standing nearby watching the incident.

11 The offender in due course ceased his attack on the deceased. He went back over the road to her home where he washed the blood off his hands. He then walked backwards and forwards in the street, apparently mumbling to himself.

12 A number of people had telephoned 000. The police arrived shortly afterwards and arrested the offender. In a subsequent ERISP he admitted breaking into the deceased’s home and stabbing her. He said that he was drunk and very angry with the deceased at the time. He was then charged with murder and has been in custody ever since.

13 I apologise to the deceased’s family, who are present, for this recitation of the deceased’s injuries which I know they will find very distressing. However it is necessary to catalogue these injuries, for the sheer brutality of this killing is a highly relevant matter on sentence.

14 The post mortem report of Dr Dianne Little attests to the ferocity of the attack upon the deceased. There were no less than sixty injuries on the deceased’s body. Around the head and neck there were sixteen injuries, consisting of eleven bruises and abrasions, one puncture wound and four stab wounds. The stab wounds varied in depth between 1.5 and 5 centimetres. There were sixteen further injuries to the deceased’s trunk. These comprised six areas of abrasions, three incised wounds and seven stab wounds. The stab wounds varied from 4 centimetres to 28 centimetres in depth. One of them, in the deceased’s upper chest, passed completely through her body and exited through her back. The remaining 28 injuries were inflicted on the deceased’s arms and legs. There were seven areas of abrasions, ten incised wounds, and eleven stab wounds, four of which were exit wounds.

15 I turn now to say something about the offender himself. The offender is 41 years old having been born in Western Samoa on 8 August 1966. He comes from a very large family: he was the second youngest of thirteen children. On all accounts it was a very difficult childhood. His family was very poor; his father was frequently intoxicated and regularly abused his children, including the offender. He completed his schooling in year ten when he was 17 years old. He had some learning difficulties and was not a good student. His results were generally below average. Since leaving school he has obtained no further qualifications or skills. In spite of this he has been able to remain in full time employment for most of his adult life.

16 At the age of 19 the offender moved to New Zealand. There he worked as a machine operator for a number of years. In June 1994 he was convicted, following a jury trial, of raping a female over the age of 16. He was sentenced to imprisonment for five years. He was released from custody after three years.

17 The offender married in the early to mid 1990s, when he was about 27 years old. There are two children from the marriage. In January 2000 the offender was convicted of assaulting a female, apparently his wife. He told Mr. Taylor, the psychologist, that he had punched his wife because she mistreated his children. The marriage finally ended in 2001 when the offender’s wife left New Zealand and brought the two children to Australia. The offender was unable to come at that time because he was not a New Zealand citizen. He eventually came to Australia in September 2006, hoping to reunite with his family. However on his arrival his wife told him that she had formed a new relationship. This on all accounts was extremely upsetting to the offender.

18 The offender has a long history of alcohol abuse. He started drinking heavily when he was in New Zealand, and on all accounts, intoxication had a large part to play in the rape offence for which he was sentenced in 1994. He told Mr Taylor that after his separation from his wife he drank to the point of intoxication almost every day. He maintained this pattern of drinking until he went into custody. It is perfectly clear that alcohol played a very large part in the commission of these offences. This is neither a mitigating nor an aggravating factor, but it probably serves to explain at least part of the offender’s extraordinary behaviour that morning.

19 I come now to discuss the matters relevant to sentence. I am dealing here with the primary offence of murder. I shall discuss the second charge on the indictment a little later.

20 My first task is to assess the objective seriousness of the offence, taking into account matters set out in s 21A Crimes (Sentencing Procedure) Act 1999 insofar as they relate to the offence itself rather than to the offender.

21 The Crown submits that the following aggravating factors in s 21A are relevant to his case:

1. The offence involved the actual use of a weapon.
2. The offence was committed in the home of the victim.
3. The offence was committed in the presence of a child under 18 years of age.
4. The offence was part of a planned activity.

22 Mr Smith of counsel, who appeared for the offender on sentence, did not dispute the first two matters, which are clearly applicable in this case. However in relation to the third matter, namely that the offence was committed in the presence of a child, Mr Smith submitted that this can only be relevant if the offender actually knew of the presence of the child. There was no evidence to that effect in this case, he submitted.

23 It is the presence of Ms Tuavao’s children at the scene which gives rise to this issue. It would seem that her three year old daughter and thirteen year old son both witnessed the offender’s brutal stabbing of the deceased at the doorway of their home. The offender was related to Mrs Tuavao, by marriage, and he would have been well aware of the likely presence of the children within the home at that time of day. Certainly he did not choose the location of this final attack on his victim. It was she who ran to Ms Tuavao’s home in an unsuccessful endeavour to find refuge. In continuing his attack upon her at that home the offender should, in my view, have been aware,at the very least, of the real possibility that one or more or Ms Tuavao’s children would witness the attack. In my view this is a relevant aggravating factor.

24 The other matter disputed by Mr Smith related to the degree of planning before the offence. The intention to kill or really seriously injure the victim, he submitted, was only formed after the offender had gained entry to the victim’s house. In other words, the offender should have the benefit of the mitigating factor that the offence was not part of a planned or organised activity. I cannot accede to this submission. The fact that the offender collected a hammer and knife from his own home and took them back to the deceased’s home is crucial to this issue. One must ask what was the offender’s intention at that time if it was not to inflict injury, and probably very serious injury, having regard to the nature of the knife. The Crown does not suggest that the offender had an intention to kill the victim when he broke into her home, rather that he intended at that time to really seriously injure her. It was only when he was inside and the situation escalated that he formed an intention to kill her.

25 I accept this analysis. In my view the act of collecting the knife from the offender’s home and taking it back to the deceased’s home clearly shows a degree of planning and premeditation; certainly not to kill the deceased at that stage, but to inflict really serious injury upon her. This is consistent with the offence set out on Form 1, namely that the offender broke into the deceased’s home intending to commit a serious indictable offence, to wit, malicious wounding. Mr Smith submitted that the “malicious wounding” referred to in this offence falls short of inflicting grievous bodily harm. However I reject this submission: it is not consistent with the terms of s 33 of the Crimes Act.

26 I therefore accept that each of the four aggravating factors referred to in s 21A and relied upon by the Crown are applicable in this case. There are no relevant mitigating factors.

27 Thus far, I have mentioned only the aggravating factors referred to in s 21A. In my view, by far the most significant aggravating factor in relation to this offence arises apart from that section. I am referring to the ferocity and brutality of the killing itself. As the Crown Prosecutor said, it is difficult to imagine the horror that the deceased must have suffered during this attack. When she was already gravely injured, with the stab wound to her stomach, she managed to escape and to seek refuge in Ms Tuavao’s house opposite. Refuge was close to her, but the offender chased her, pulled her out of Ms Tuavao’s grasp and then proceeded with a frenzied attack which inflicted terrible injuries.

28 All these factors combine, in my opinion to place the objective seriousness of this offence above the mid-range and well above it.

29 I turn now to consider the aggravating and/or mitigating factors relating to the offender himself.

30 By way of aggravation, the Crown relies on the offender’s criminal record. This consists of the two New Zealand convictions I have already mentioned, namely the rape conviction in 1994 and the assault female in 2000. Mr. Smith acknowledges these offences, but submits that they are not such as should be treated as aggravating factors in the present case. He contrasts the offender’s record with the lengthy records which one so often sees in these courts, and points out that the one really serious offence, the rape, was committed a long time ago now. The offender has no convictions at all in this country.

31 I am inclined to accept this submission. The offender’s convictions deprive him of the benefit of a number of mitigating factors which he would otherwise have been able to call upon under s 21A. Given the matters referred to by Mr. Smith, I consider that it would be unduly harsh to him to also use his record as an aggravating factor.

32 Given this finding, it is strictly not necessary to refer to the considerations of personal deterrence or danger to the public. In my view they would not in any event be significant considerations in the case of the offender. Mr. Taylor assessed him as having a low to moderate risk of recidivism. It must be remembered that by the time he is released from custody he will be approaching his sixties. There is nothing in his background to suggest that these considerations should have any real relevance to his situation at that stage.

33 There are two mitigating factors: the offender’s remorse, and his plea of guilty. I accept that he is extremely remorseful for his actions. A handwritten letter from the offender was tendered on sentence, expressing profound regret for what he has done. The contrition is also expressed in his plea of guilty. Mr. Smith submitted, and the Crown agreed, that the plea of guilty should, in the circumstances, result in a 20% reduction of sentence in his case. I agree that this is an appropriate deduction, and I propose to apply it.

34 Victim Impact Statements were read to the Court on behalf of the deceased’s mother, Julie Helm, and her grandmother, Pat de Courcey. These attest to the vibrant, outgoing and giving nature of the deceased, and the devastating effect of her death on everyone who knew her, particularly on her family and her two very young children, Angel and Wilson. The Court acknowledges these extremely moving statements, and expresses its condolences to the deceased’s family, who have closely followed these proceedings. I take the statements into account in the manner provided by the legislation.

35 The standard non-parole period for murder is 20 years. However the offender’s plea of guilty means that it does not directly apply in this case. Rather, it is to be used as a guide in determining the appropriate sentence.

36 In sentencing the offender for murder I am also obliged to take into account the Form 1 offence. The Crown submits that I should increase the sentence, albeit only slightly, to take account of this offence. However the breaking into the deceased’s home was so much a feature of the principal offence – and, in one sense, indeed was one of the aggravating factors in relation to it – that it would be inappropriate, in my view, to also take account of it under this head.

37 Thus far I have discussed only the principal offence of murder. I now turn to discuss, albeit briefly, the second count to which the offender has pleaded guilty. That is the offence of threatening injury to Ms Tuavao with intent to wound her and cause grievous bodily harm. It was a serious offence, which placed Ms Tuavao at personal risk of injury, and which terrified both her and the two children who witnessed it. In this regard, there are two aggravating factors under s 21A: first, that it involved the threatened use of an offensive weapon; secondly that it was committed in the presence of a child – or in this case, two children – under the age of 18. Ms Tuavao’s Victim Impact Statement testifies to the lasting effect that this offence has had on all three of them, all of whom continue to suffer from recurring nightmares. The sole mitigating factor is that it was not part of a planned or organised activity.

38 The Crown has submitted that the sentence for this offence should be partially cumulative on the sentence for murder. I think that this is appropriate in the circumstances. In one sense this offence was part of the offender’s continuing attack on the deceased, and was therefore related to the murder. However, unlike the Form 1 offence, this offence involved a separate victim and, in my view, requires a degree of separate punishment. However, given the length of the term that the offender will be serving in relation to the murder, the principle of totality requires that there be a much smaller degree of accumulation than would otherwise be appropriate for this offence

39 Affidavits by family members of the offender have been tendered, testifying to their continued support for him. I very much hope that this support continues for the long time that the offender will remain in custody.

40 Mr. Smith submitted that there are special circumstances in this case which should break the statutory nexus between the non-parole period and the balance of the term. In particular, the offender will benefit from a long period of supervision on his release from custody. On the other hand, as Mr. Smith himself observed, the non-parole period provided in the legislation is generally sufficient to allow for adequate supervision in the case of many homicide offenders. In many ways, I consider that this is such a case. However, because of the central importance of rehabilitation in the offender’s case, and because he will almost certainly need a great deal of support and assistance on his release from custody, I have tempered the sentence I would otherwise have imposed, by very slightly reducing the non-parole period, and correspondingly increasing the additional term. To this extent, I find that the offender’s likely need for lengthy ongoing support and assistance constitutes special circumstances.

41 The offender has been in custody since 11 March 2007, and his sentences must therefore commence on that date.

42 Maumaga Leiataua, in relation to the offence of threatening injury to Fou Tuavao with intent to commit an indictable offence, I sentence you to a fixed term of imprisonment of two years, to commence on 11 March 2007 and to expire on 10 March 2009. In relation to the murder of Sharna De-Courcey, and taking into account the offence on Form 1, I sentence you to imprisonment consisting of a non-parole period of 17 years, to commence on 11 September 2007 and to expire on 10 September 2024. The balance of your term of imprisonment will be 6 years and six months, commencing on 11 September 2024 and expiring on 10 March 2031 The first date on which you will be eligible for release on parole will be 10 September 2024.

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