R v Saulala
[2016] ACTSC 48
•18 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Saulala; R v Saulala |
Citation: | [2016] ACTSC 48 |
Hearing Date: | 17 December 2015 |
DecisionDate: | 18 February 2016 |
Before: | Burns J |
Decision: | See [28]-[31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – offences against the person – co-offenders – assault occasioning actual bodily harm – threat to inflict grievous bodily harm – degree of provocation – offenders intoxicated – early guilty pleas – good prospects of rehabilitation. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 31 |
Parties: | The Queen (Crown) Liufau Saulala and Isileli Saulala (Offenders) |
Representation: | Counsel Mr T Hickey (Crown) Mr T Sharman (Liufau Saulala) Mr K Pattendon (Isileli Saulala) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitor (Liufau Saulala) Prail Lawyers (Isileli Saulala) | |
File Numbers: | SCC 136 of 2014; SCC 236 of 2014; SCC 237 of 2014 |
BURNS J:
Isileli Saulala, you have pleaded guilty to one count of assault occasioning actual bodily harm. This offence occurred in the early hours of Sunday, 2 March 2014. Liufau Saulala, you have entered a plea of guilty to one count of threatening to inflict grievous bodily harm arising out of the same incident.
The offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (the Crimes Act), carries a maximum penalty of five years' imprisonment. The maximum penalty for the offence of threatening to inflict grievous bodily harm, contrary to s 31 of the Crimes Act, is also five years' imprisonment.
Isileli Saulala, you were committed for trial on three charges, one of which was the charge to which you have now pleaded guilty. Your guilty plea came on the first day of your trial in this Court. It cannot be described as an early plea, but I accept that it had utilitarian value. I also accept that it reveals contrition on your part. I will reduce the otherwise appropriate sentence by approximately 10 per cent to reflect your plea.
Liufau Saulala, you were committed for trial on a number of charges, which did not include the charge to which you have entered a plea of guilty. As a result of negotiation between your legal representatives and the Crown, you entered a plea of guilty to the present charge on the first day of your scheduled trial. Whilst your plea cannot be described as a plea on the first occasion, it is nevertheless relevant to consider that you entered a plea at an early occasion to an appropriate charge when that was proffered by the Crown. I will reduce the otherwise appropriate sentence by approximately 20 per cent to reflect your plea.
The Offences
The offence of assault occasioning actual bodily harm arose out of an argument in a Canberra nightclub which both of you and a group of your friends were visiting. Isileli Saulala, you became involved in a verbal argument with the victim over some minor incident on the dance floor. You pushed the victim away and he then punched you. The two of you then began fighting. At that point, two unidentified males from your group of friends became involved, and a number of punches were delivered to the back of the head of the victim.
You participated in this assault with the two unidentified males. During this assault the victim received a 22 centimetre long laceration to the back of his head and neck. Subsequent medical opinion was that this laceration was caused by a sharp-edged object, possibly sharp slivers of glass or a broken glass bottle. There is no suggestion in the Statement of Facts that you were holding any such object at the time this fight commenced, or that you had the opportunity to obtain such an object during the course of the assault. It is much more likely that one of your friends who joined in the assault on the victim was carrying a glass or some other object which caused the wound.
Whilst you, Isileli Saulala, instigated the physical confrontation with the victim by pushing him, it was the victim who significantly escalated the incident by punching you. The Crown accepts that the victim was significantly affected by alcohol and amphetamine-type substances on this evening.
The Crown case against you is that you were part of the group which acted with a common purpose to assault the victim and that as a result of that assault the victim sustained actual bodily harm. You accept by your plea that in acting as you did in joining in with your friends in assaulting the victim you were not acting in self defence.
The assault on the victim was soon broken up by security guards, and you and the victim were both ejected from the club. Outside the club you and the victim continued to antagonise each other. The victim, by this point, had removed his shirt. Security staff began to intervene and told the victim to leave the area. However, he invited you to continue to fight him. Both of you ran around on the road outside the bar exchanging punches.
In the meantime, there were a number of people in the area watching the incident. Two of those people requested police assistance by telephone. At that time, the victim punched you, causing you to fall to the ground. You, Liufau Saulala, then picked up a beer bottle from the ground and smashed it. You ran towards the victim and said words to the effect of, "I'll kill you," or "I'll get you". The victim believed that you were serious about causing him serious harm, and he ran around trying to avoid you, before running into the next street to try to get away. It is accepted by the Crown that the period during which you were holding the broken beer bottle was very short.
A short time later, police arrived and saw the victim walk past their car. They also saw you, Isileli Saulala, walk towards the victim. Police directed you to stop, but you ignored their direction. Police then sprayed you with a short burst of oleoresin capsicum spray, following which, you became compliant and police arrested you. Police also spoke to you, Liufau Saulala, but did not arrest you that evening.
The victim was conveyed to hospital by ambulance where an x-ray revealed that he had sustained soft tissue injury only. Medical staff sutured the 22 centimetre laceration at the back of his head and neck and he was prescribed medication for pain relief.
On 3 April 2014 you, Isileli Saulala, agreed to be interviewed by police. During the interview you stated that you bumped into two guys dancing, and one of them, the victim, confronted you and there was a fight. You admitted punching the victim, however, you denied punching him in the back of the head or causing the laceration. On 12 April 2014 police spoke to you, Liufau Saulala, and you also agreed to be interviewed. During the interview you stated that you tried to stop the fight inside the nightclub and held your brother back and saw that the victim had a bad cut. You said that outside the nightclub you saw the victim punch your brother, so you again tried to stop them.
A victim impact statement dated 17 December 2015 was tendered by the Crown. Unsurprisingly, the statement concentrates on the serious laceration the victim sustained and its ongoing affects upon him. After the assault the victim had difficulty sleeping because of the physical pain. When he did sleep, he would wake up feeling anxious. He continues to have difficulty getting a good night's sleep because of stiffness and soreness in the area of his injury.
The injury has affected him in his work as a carpenter in the construction industry. He had two weeks off work after the assault and then returned to light duties for another two weeks. He now finds that he gets headaches and migraines when wearing a hardhat and glasses while working on construction sites. He speaks of increased difficulty in performing daily routine functions. He now finds that he suffers from anxiety, which hampers him in his social life. He no longer attends clubs.
His girlfriend was a witness to the events of 2 March 2014, and these events have had an impact on their relationship. The victim has also suffered financially through lost work and medical expenses. It is clear that this assault has had a significant and ongoing effect on the victim.
Subjective Features
I note that you, Isileli Saulala, have a criminal history, although it is mainly with respect to traffic offences. You do, however, have previous convictions for offences of violence. On 19 December 2008, you were convicted at the Liverpool Local Court in New South Wales for offences of assaulting a police officer in the execution of their duty and resisting or hindering a police officer in the execution of their duty. The sentence imposed was effectively a good behaviour bond for a period of three years.
The sentence imposed a condition requiring you not to consume alcohol while taking chemotherapy medication. On 18 June 2009, you were convicted of an offence at the Burwood Local Court in New South Wales of refusing or failing to comply with a direction. The nature of this offence is not clear, and I do not suggest that it was necessarily an offence of violence. The significant aspect of this matter is that a bond was imposed, which also incorporated conditions relating to alcohol and drug rehabilitation. It is to my mind no coincidence that the present matter also involved you being affected by alcohol. You, Liufau Saulala, have only one matter on your criminal history, being a drink driving offence in 2012. For present purposes, this offence is irrelevant.
A Pre-Sentence Report prepared for you, Isileli Saulala, states that you are 34 years old and you are currently residing in Sydney, although you are prepared to relocate to Canberra to undertake community service work or periodic detention, if required. You are currently working three to four days a week as a labourer in the building industry. You reported moderate use of alcohol over the last 12 months, although an alcohol use identification tool indicated that your alcohol use over that period has been at a risky level and you may benefit from harm reduction advice.
You told the author of the Pre-Sentence Report that you agree with the Statement of Facts. You claim to understand the seriousness of your offending behaviour and you expressed remorse towards your victim. You acknowledged that you were intoxicated at the time of the offence. It was the opinion of the author of the Report that you did not minimise your offending behaviour and you appeared to accept responsibility for your actions. You are assessed as suitable for both community service work and periodic detention.
A Pre-Sentence Report was also prepared for you, Liufau Saulala. You are
29 years old and the youngest of six children to your parents, who are of Tongan background. You moved to Australia from New Zealand in 2011, and you have since married and assumed joint care of your 17-year-old stepson and 7-year-old nephew, who joined you in Australia last year.
Your family members are extensively involved in a Christian church in New Zealand, of which your father is a minister. You described a supportive family relationship. You said that you are employed in the construction industry on a full time basis and at a supermarket filling shelves on a casual basis. You work in that regard between three and five evenings a week. Your employer has verified that you are required to work Monday through Saturday. Your employer stated that you have a strong work ethic; you attend work every day, are punctual and a hard worker.
You reported that you reside with your wife, stepson and young nephew in private rental accommodation. You reported moderate alcohol use. You agreed with the Statement of Facts and expressed embarrassment and shame concerning your offending behaviour and consequent actions. It was the opinion of the author of the Report that you did not minimise your offending behaviour and you appeared to accept responsibility for your actions. You were assessed as suitable for community service work, but not for periodic detention due to your family and work commitments.
I take into account the contents of a letter from Kelly Ford-Saulala, the wife of you, Liufau Saulala. I also take into account the letters written on behalf of both of you by your parents. I accept that you both come from a strong family background and that you are dedicated to your family. I accept that you are hard workers, working to support your family, including your extended family. I also take into account that you, Isileli Saulala, have suffered from leukaemia, for which you received treatment from 2008 until 2010, although it appears that that condition is now in remission.
In sentencing you, Isileli Saulala, I take into account the fact that you do not have a lengthy criminal history suggesting that individual deterrence should have prominence in sentencing. The sentences imposed for your prior offences of assault police and resisting or hindering a police officer suggest that those offences were not particularly serious examples of that type of offending. I accept that you have good prospects for rehabilitation. I also take into account the fact that the victim behaved in an aggressive and confrontational manner before the assault and, in fact, punched you.
I accept, therefore, that you acted under a degree of provocation. Your actions were spontaneous and you have expressed contrition, which I accept to be genuine. I have also found that you were not personally responsible for the significant wound suffered by the victim, although the fact that the victim did suffer such an injury cannot be ignored in sentencing you. The effects upon the victim are significant and are likely to continue. In my opinion, a sentence of imprisonment is appropriate with respect to this offence. Bearing in mind all of the circumstances, I will impose a sentence to be served partly by way of periodic detention and partly by way of suspended sentence.
In sentencing you, Liufau Saulala, I take into account the fact that you have no relevant criminal history. I accept that you have good prospects for rehabilitation. I also take into account the fact that your actions occurred spontaneously and that the offence was of very brief duration. I also take into account that you attempted to break up the earlier fight involving your brother and that you became involved in the melee on the street outside the club because of perceived threat to your brother. I think it is unlikely that you will reoffend in a similar manner in the future. Your actions, nevertheless, were calculated to cause significant fear for the victim and others in a public place. I will record a conviction and impose a Good Behaviour Order with a community service component.
Sentence
Isileli Saulala, you are convicted and sentenced to 16 months imprisonment, reduced from 18 months because of your plea of guilty, of which four months, commencing today and expiring on 17 June 2016, is to be served by way of periodic detention. The first detention period will commence tomorrow, 19 February 2016. The balance of the sentence will be suspended and there will be a Good Behaviour Order for a period of two years from today, 18 February 2016 with the following conditions:
(a)you are to accept the supervision of the Director-General for a period of 12 months or such lesser period as deemed appropriate by the Director-General or that person's delegate; and
(b)you are to obey all reasonable directions of the Director-General or his delegate.
You are to report forthwith to ACT Corrections.
Liufau Saulala, you are convicted and there will be a Good Behaviour Order for a period of 12 months commencing today, with the following conditions:
(c)you are to accept the supervision of the Director-General or that person's delegate for a period of 12 months, or such lesser period as deemed appropriate by the Director-General or his delegate; and
(d)you are to complete 80 hours of community service as directed by the Director-General or his delegate.
You are to report forthwith to ACT Corrections.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Domenica Scuteri Date: 22 March 2016 |
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