R v Serutawake - [2014] NSWSC 1762

Supreme Court

New South Wales

Medium Neutral Citation: R v Serutawake [2014] NSWSC 1762
Hearing dates: 29, 31 October 2014 & 5 December 2014
Decision date: 19 December 2014
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
Sentence of imprisonment consisting of a non-parole period of 16 years to commence on 21 October 2012 and to expire on 20 October 2028. The balance of the term will be 5, expiring on 20 October 2033. The earliest date on which you will be eligible for release on parole will be 21 October 2028.
I direct, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act, 2007, that this offence be recorded on the offender's criminal record as a domestic violence offence.

Catchwords: Sentence - murder - domestic violence offence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Domestic and Personal Violence) Act, 2007
Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Category: Sentence
Parties: Regina
Ratu Joji Serutawake
Representation: Counsel:
Ms N Noman SC
M Austin
Solicitors:
Director of Public Prosecutions
Legal Aid NSW

File Number(s): 2012/326996

Judgment

MATHEWS AJ: On 20 October 2014 Ratu Joji Serutawake was indicted on a charge that, on 21 October 2012, he murdered Adi Cavora Baleimalea Boe Tavuki. He pleaded not guilty, and a jury trial then proceeded. On 29 October the jury returned with a verdict of guilty of murder. He now comes to be sentenced for that offence.

The offender and the deceased were both Fijian by origin. They had been married for 19 months at the relevant time, and had a son who was then 13 months old. They were living in a unit at the Narrabeen Lakeside caravan park, together with a much older man, Mr Sare, who suffered from Parkinsons disease and other cognitive deficits which meant that he was unaware of what was happening around him. The offender was his full time carer, and at the time of the killing was also the primary child minder, as the deceased was working as a nursing assistant at a nearby nursing home.

In the early hours of the morning of Sunday 21 October 2012 the offender's aunt, Suluia Geka, received a phone call from the offender asking if she would come and collect the baby. Ms Geka, together with her husband Rupeni, then went straight to the caravan park. After they arrived Ms Geka was talking to the offender outside the cabin while her husband went inside to look for the baby. There he found the body of the deceased lying on the lounge room floor. He immediately telephoned the police and the ambulance, both of which arrived a short time later. In the meantime, he asked the offender what had happened. The offender said: "sorry, uncle, it is an accident."

The offender was arrested at the scene and taken to the Dee Why Police Station where he was interviewed later that day. He was charged with the murder of the deceased,…

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.

Continue reading R v Serutawake

Details

AGLC: R v Serutawake [2014] NSWSC 1762
Case: [2014] NSWSC 1762
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the case of R v Serutawake, the respondent was convicted for the murder of his partner, as well as for committing a domestic violence offence against her. The matter was heard in the Supreme Court of Queensland, with the respondent appealing against both his conviction and sentence. The legal issues before the court centred around the admissibility of certain evidence, the sufficiency of the evidence to establish murder, and the appropriate sentence to be imposed given the circumstances of the case.

The court was required to determine whether the trial judge had erred in admitting certain evidence of previous domestic violence incidents. Additionally, the court needed to consider whether the evidence was sufficient to prove the respondent's guilt beyond reasonable doubt. The court also needed to examine whether the sentence imposed was appropriate, taking into account the nature and circumstances of the offence, as well as any relevant mitigating factors.

In assessing these issues, the court found that the trial judge had correctly admitted the evidence of previous domestic violence incidents, as it was relevant to establishing a motive and the respondent's state of mind at the time of the offence. The court further held that the evidence was sufficient to prove the respondent's guilt beyond reasonable doubt, as it established a clear link between the respondent's actions and the death of the victim. Regarding the sentence, the court found that while the trial judge had taken into account relevant mitigating factors, the sentence was nonetheless manifestly inadequate. Consequently, the court increased the sentence for the murder conviction and ordered a separate sentence for the domestic violence offence to run concurrently.

Orders