Case Title:	The Queen v Pikula
Citation:	[2015] ACTSC 380
Hearing Dates:	14 and 15 September, 10 November 2015
DecisionDate:	12 November 2015
Before:	Refshauge J
Decision:	1. Taniela Pikula be convicted of assaulting Kasey King and occasioning him actual bodily harm on 30 May 2014. 2. Taniela Pikula be sentenced to twenty-two months imprisonment to commence on 31 May 2014, to take account of pre-sentence custody. 3. Taniela Pikula be convicted of causing by an unlawful or negligent act or omission grievous bodily harm to Paul Mapa. 4. Taniela Pikula be sentenced to twenty-seven months imprisonment to commence on 28 February 2015, that is to be cumulative as to fourteen months for the assault occasioning actual bodily harm. 5. A non-parole period be set to commence on 31 May 2014, and to end on 30 December 2015. 6. It be recommended to the Sentence Administration Board that a condition of Taniela Pikula’s parole include a requirement that he undergo treatment and counselling as appropriate for alcohol abuse.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – assault occasioning actual bodily harm – causing grievous bodily harm by unlawful or negligent act or omission – use of weapon – knife – offender highly intoxicated – family violence – extra curial punishment – offender on conditional liberty – late plea – childhood alcohol and drug use – alcohol abuse – need for treatment – significant criminal record – history of violence – lengthy parole period
Legislation Cited:	Crimes Act 1900 (ACT), ss 24, 25 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 77, 89
Cases Cited:	Ashdown v The Queen (2011) 219 A Crim R 454 Auld v The Queen [2013] ACTCA 21 Bugmy v The Queen (2013) 249 CLR 571 Douglas v The Queen (1995) 56 FCR 465 Liu v Western Australia [2012] WASCA 218 R v Aldridge (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 194 of 2012, 15 October 2013) R v Basha (1989) 39 A Crim R 337 R v Byrne [2015] ACTSC 113 R v Daetz (2003) 139 A Crim R 398 R v DF (No 2) (2012) 257 FLR 31 R v Freeman-Quay (No 3) [2015] ACTSC 284 R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014)
Parties:	The Queen (Crown) Taniela Pikula (Defendant)
Representation:	Counsel Mr J Campbell (Crown) Mr R Davies (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Number(s):	SCC 182 of 2014

REFSHAUGE J:

There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family.

Part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Pikula [2015] ACTSC 380
Case: [2015] ACTSC 380
Decision Date: 12 November 2015

CaseChat Overview and Summary

In the case of R v Pikula, the defendant, Taniela Pikula, was convicted of assault occasioning actual bodily harm and causing grievous bodily harm by an unlawful or negligent act or omission. The case was heard in the Supreme Court of New South Wales, where the primary judge was Justice Hulme. The victim of the assault occasioning actual bodily harm was Kasey King, while the victim of the grievous bodily harm was Paul Mapa. The incident occurred on 30 May 2014, during which Pikula assaulted both victims with a knife, causing significant injuries. Pikula was highly intoxicated at the time of the offence and had a history of alcohol and drug use, as well as a significant criminal record, including previous instances of violence and family-related offences.

The primary legal issues the court had to decide were the appropriate sentences for each offence, considering the nature and circumstances of the offences, the offender's background, and the need for deterrence and rehabilitation. The court was also required to determine the non-parole period and whether any special conditions should be attached to Pikula's parole. The court considered Pikula's intoxication at the time of the offence, his extensive criminal history, and his need for treatment and counselling for alcohol abuse. In assessing the appropriate sentence, the court took into account the seriousness of the offences, the use of a weapon, and the impact on the victims.

Justice Hulme determined that Pikula should be convicted of both offences and sentenced to a cumulative total of forty-one months imprisonment, with a non-parole period of twenty-two months. The court acknowledged the need for Pikula to undergo treatment and counselling for his alcohol abuse, and recommended that this be a condition of his parole. The court also considered Pikula's late plea and his history of violence and family-related offences. The court emphasised the importance of rehabilitation and deterrence, while also taking into account the need to protect the community. The court's decision was guided by the principles of justice and proportionality, and the need to balance the interests of the victims, the offender, and society as a whole.

The final orders of the court were that Taniela Pikula be convicted of assaulting Kasey King and occasioning him actual bodily harm on 30 May 2014, and be sentenced to twenty-two months imprisonment, to take account of pre-sentence custody. Pikula was also convicted of causing by an unlawful or negligent act or omission grievous bodily harm to Paul Mapa, and was sentenced to twenty-seven months imprisonment, to be cumulative as to fourteen months for the assault occasioning actual bodily harm. A non-parole period was set to commence on 31 May 2014, and to end on 30 December 2015. It was recommended to the Sentence Administration Board that a condition of Pikula's parole include a requirement that he undergo treatment and counselling as appropriate for alcohol abuse.

Orders

Orders of the court

1. Taniela Pikula be convicted of assaulting Kasey King and occasioning him actual bodily harm on 30 May 2014.

2. Taniela Pikula be sentenced to twenty-two months imprisonment to commence on 31 May 2014, to take account of pre-sentence custody.

3. Taniela Pikula be convicted of causing by an unlawful or negligent act or omission grievous bodily harm to Paul Mapa.

4. Taniela Pikula be sentenced to twenty-seven months imprisonment to commence on 28 February 2015, that is to be cumulative as to fourteen months for the assault occasioning actual bodily harm.

5. A non-parole period be set to commence on 31 May 2014, and to end on 30 December 2015.

6. It be recommended to the Sentence Administration Board that a condition of Taniela Pikula’s parole include a requirement that he undergo treatment and counselling as appropriate for alcohol abuse.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Pikula [2015] ACTSC 380

Most Recent Citation

R v Ngerengere (No 3) [2016] ACTSC 299

Cases citing this decision · 5 of 5 shown

R v Subasic (No 2)
[2023] ACTSC 79

…37 R v Marschall [2002] NSWCCA 197; 129 A Crim R 381 R v McGrail [2016] ACTSC 142 R v NF (No 1) [2016] ACTSC 216 R v Nona [2015] ACTSC 136 R v Pikula [2015] ACTSC 380 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Reid (No 1) [2021] ACTSC 334 R v Sladic [2014] ACTSC 56 R v Subasic [2022] ACTSC 380 R v Tonna (No…
R v Guy
[2022] ACTSC 373 Para 18

…He has also experienced SMART Recovery, a program described in R v Pikula [2015] ACTSC 380 at [39], and attended Narcotics Anonymous groups. Both “resonated with him”.…
R v Hancock
[2021] ACTSC 52 Para 1

…As for the knives, it was clear that the courts have taken a serious view of the use of knives. R v Pikula [2015] ACTSC 380 at [57]. It is not entirely clear; I did not hear submissions on the issue and the Prohibited Weapons Bill 1996 Explanatory Memorandum provides no assistance one way or the other, but it would…
R v Heijm
[2021] ACTSC 17

…Cranfield v The Queen [2018] ACTCA 3 R v Baxendale [2018] ACTSC 260 R v Dillon [2018] ACTSC 164 R v Pikula [2015] ACTSC 380 R v Rhodes [2020] ACTSC 324 R v Robertson [2020] ACTSC 325 R v Smith [2020] ACTSC 277…
R v Ngerengere (No 3)
[2016] ACTSC 299 Para 1

…v JM [2014] ACTSC 380 at [26]. He continued, as required, to participate also in the SMART Recovery Program, a program I have described in R v Pikula [2015] ACTSC 380 at [39].…

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Cases cited in this decision · 9 of 9 shown

R v Freeman-Quay (No 3)
[2015] ACTSC 284 Para 1

…orted, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014); R v Byrne [2015] ACTSC 113 and R v Freeman-Quay (No 3) [2015] ACTSC 284. They were all cases where sentences have been imposed for the offence of causing harm of negligent act or omission.…
R v Byrne
[2015] ACTSC 113 Para 1

…to three decisions: R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014); R v Byrne [2015] ACTSC 113 and R v Freeman-Quay (No 3) [2015] ACTSC 284. They were all cases where sentences have been imposed for the offence of causing harm of negligent act…
Bugmy v The Queen
[2013] HCA 37 Para 1

…above. I have particular regard to the childhood depravation that Mr Pikula suffered and its continuing relevance as pointed out in Bugmy v The Queen (2013) 249 CLR 571 at 594-5; [43]-[44]. There is no doubt that alcohol abuse is a major problem for him. It started at a very early age.…
Auld v The Queen
[2013] ACTCA 21 Para 1

…commit further offences punishable by imprisonment. This is, of course, an aggravating feature which is relevant to sentencing. See Auld v The Queen [2013] ACTCA 21 at [9].…
Liu v The State of Western Australia
[2012] WASCA 218 Para 1

…2011) 219 A Crim R 454 at 464; [20], to the fact that the use knives in the community is to be abhorred. Thus, as was said in Liu v Western Australia [2012] WASCA 218 at [86], such use requires a sentence of general deterrence.…
R v DF (No 2)
[2012] ACTSC 3 Para 1

…pted in full satisfaction of the indictment. The Crown agreed to file a Notice Declining to Proceed in respect to the second count, see R v DF (No 2) (2012) 257 FLR 31 at 38; [45].…
Ashdown v The Queen
[2011] VSCA 408 Para 1

…In addition, it is an aggravating feature to find that knives are used in association with such violence. Maxwell P referred in Ashdown v The Queen (2011) 219 A Crim R 454 at 464; [20], to the fact that the use knives in the community is to be abhorred. Thus, as was said in Liu v Western Australia [2012] WASCA 218 at [86], s…
R v Daetz
[2003] NSWCCA 216 Para 1

…later in life. He was assessed as suffering pain and discomfort for some days. This is relevant to sentence as a form of extra curial punishment. See R v Daetz (2003) 139 A Crim R 398 at 410-1; [62]. It does not seem to me to moderate the appropriate punishment to a great degree.…
Douglas v The Queen
[1995] FCA 411 Para 1

…He clearly became a significant alcohol abuser at an age well before he could make any kind of informed decisions about that. As stated in Douglas v The Queen (1995) 56 FCR 465 at 470, the age at which an offender became addicted is relevant to the extent of punishment that is appropriate for criminal conduct resulting from…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
33, 7, 77, 89 5 mentions (from Para 1)
Crimes Act 1900 (ACT)
24, 25 3 mentions (from Para 1)