R v Taufoou

[2021] NSWDC 402

District Court

New South Wales

Medium Neutral Citation:

R v Taufoou [2021] NSWDC 402

Hearing dates:

22 March 2021 to 1 April 2021
9 August 2021

Date of orders:

12 August 2021

Decision date:

12 August 2021

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

Aggregate term of imprisonment of 6 years and 6 months

Catchwords:

CRIME –Assault occasioning actual body harm with intent – Common Assault

SENTENCING – Relevant factors on sentence – Quasi custody – Immigration Detention

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Al-Kateb v Godwin [2004] HCA 37

AM v R [2012] NSWCCA 203

Islam v The Queen [2014] ACTCA 2

Markarian v The Queen [2005] HCA 25

Muldrock vThe Queen (2011) 244 CLR 120

R v Dadash [2012] NSWSC 1511

R v Kama (2000) 110 A Crim R 47

R v Mitchell (2007) 177 A Crim R 94

R v Mohamed [2016] VSC 581

R v Woods (NSWCCA, 9 October 1990, unreported

R v Wright [1998] VSCA 84

Small v R [2018] NSWCCA 290

Category:

Sentence

Parties:

Crown (NSW): Regina
Offender: Petueli Taufoou

Representation:

Counsel:
Crown (NSW): Fleur Sullivan
Offender: Karen Conte-Mills

Solicitors:
Crown (NSW): James Moore, ODPP
Offender: Claude Harb, Harb Lawyers

File Number(s):

2016/284335

Publication restriction:

n/a

Judgment

1. The offender Petueli Taufoou born in1991 in Tonga, has been found guilty of the offences of:

1. On 21 September 2016, at Canley Vale in the State of New South Wales he caused grievous bodily harm to Tan Phong Nguyen with intent to cause grievous bodily harm to Tan Phong Nguyen contrary to s33(1)(b) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment and for which there is a standard non-parole period of seven years (Count 1);

2. On 21 September 2016, at Canley Vale in the State of New South Wales, assaulted Thanh Hien Nguyen, thereby occasioning him actual bodily harm contrary to s59(1) of the Crimes Act 1900 for which the maximum penalty is five years imprisonment and for which there is no standard non-parole period (Count 3); and

3. On 21 September 2016, at Canley Vale in the State of New South Wales, assaulted Hong Anh Dang contrary to s61 of the Crimes Act 1900 for which the maximum penalty is two years imprisonment and for which there is no standard non-parole period (Count 4).

2. I find the following facts:

1. As at 21 September 2016, the offender, then aged 24 years of age, lived in a block of units at West St, Canley Vale.

2. The offender had practised boxing when he was in Tonga.

3. There are three victims in this matter; Tan Phong Nguyen (aged 55 at the time of the offences), Thanh Hien Nguyen (aged 50 at the time of the offences), and Hong Anh Dang (aged 24 at the time of the offences).

4. On 21 September 2016, the three victims were travelling together in a car that was being driven by Tan Phong. Tan Phong was taking Hong Anh Dang home to his unit at West St, Canley Vale. The parking lot had about seven or eight parking spaces.

5. Upon arrival, Tan Phong drove a few metres into the driveway complex so that his car was positioned on an angle on the right-hand side of the driveway. He did not park in any of the parking spaces. Tan Phong’s intention was to drop off Hong Anh Dang and then drive out.

Count 1 – Cause GBH with intent (Tan Phong Nguyen)

6. At the time when the victims arrived at West Street, the offender’s car was parked in one of the parking spaces.

7. The offender and his wife, HM, were getting ready to go to the shop before dropping their cousin home.

8. Tan Phong’s car was positioned so that it was to some extent blocking the offender’s car from getting out of the driveway and the offender then said “fucking reverse your car” to Tan Phong.

9. Before Tan Phong or the other victims were able to respond, the offender approached Tan Phong’s car and punched Tan Phong through the driver’s window with considerable force to the right side of his face near his mouth.

10. Tan Phong’s head jerked back as a result of the impact and his mouth began to bleed. At that point, the victim Tan Phong was stunned and scared. He got out of the car and said “Why did you hit me?”

11. The offender continued to throw forceful punches to Tan Phong’s face.

Count 3 – Assault occasioning ABH (Thanh Hien Nguyen)

12. Thanh Hien Nguyen got out of the car and said “No, no, no” to the offender with his hands in the air, and Hong Anh Dang tried to pull the offender away.

13. The offender punched Thanh Hien Nguyen three or four times in quick succession to the head and face experiencing what he described as a “near blackout”, so that he could not see anything, his vision was blurred and he lost his balance. He experienced unbearable pain.

14. Thanh Hien and Tan Phong both ran to the street and called for help. Tan Phong unsuccessfully tried to stop oncoming cars for assistance.

15. Hong Anh Dang told the offender that the three victims would leave straight away. He then ran upstairs to try and get help from his housemates.

16. When he returned, he saw the offender’s wife crying and holding her baby in her arms. She said “I’m sorry”, and she was shouting very loudly.

17. About that time, the offender drove his car out of the complex, but he returned on foot about a minute later.

18. When the offender attacked Thanh Hien Nguyen, he ran away and tried to hide behind a car. The offender chased after him and continued to assault him on his face, thigh and hip.

19. This was a second phase of the assault that was committed on Thanh Hien Nguyen, and it was after the offender had moved the car.

20. Thanh Hien fell to the ground and put his arm up to cover his head. The offender continued to kick him and stomped on his head and his back. The victim lost consciousness.

Count 4 – Common assault (Hong Anh Dang)

21. The offender then punched Hong Anh Dang to the face, causing him to fall down. The punch was hard and it caused the victim immediate pain.

22. Hong Anh Dang suffered a bloody nose and a red left cheek as a result of the attack. He felt dizzy.

Further assault on Tan Phong Nguyen – Count 1 continued

23. The offender then continued to punch Tan Phong many times to the chest and body. One punch in particular was thrown with significant force, causing the victim Tan Phong to fall down and hit his head on the concrete. Thereafter, he was lying in a pool of blood and his body was shaking. Hong Anh Dang put a shirt over Tan Phong.

24. Hong Anh Dang ran upstairs a second time to call the police and an ambulance. Given that Hong Anh Dang had difficulties speaking English, he asked his housemate, Liem Nguyen, to call the police.

25. The offender and his wife walked to their car and drove away. Police and paramedics arrived at the scene shortly after.

Injuries – Tan Phong Nguyen

26. Upon examination at the Emergency Department in Liverpool Hospital, the treating doctor observed the following injuries on the victim Tan Phong Nguyen:

1. Haematoma under the forehead;

2. Lacerations (open wounds) to the forehead (2cm) and to the back of the scalp (3cm). (The laceration on the back of the scalp was bleeding considerably);

3. Swelling over both cheeks;

4. Laceration over the upper lip (1cm), which went through to the inside of the victim’s mouth);

5. Three missing teeth;

6. Laceration to the left ear, including blood in the left ear canal; and

7. Abrasion/graze to the lower back and the left hip.

27. The victim Tan Phong was intubated and underwent a CT scan. The results of that scan showed the following:

1. Bleeding in the subdural and subarachnoid spaces of the brain;

2. A shifting of the brain to the opposite side;

3. Fractures through the base of the skull, which involved the left ear (and an associated left facial paralysis);

4. Left nasal bone fracture; and

5. Haematoma in the scalp.

28. The victim was extubated one week later. He was discharged from hospital on 14 October 2016, just over three weeks after the offending.

Injuries – Thanh Hien Nguyen

29. The victim Thanh Hien Nguyen was examined at Liverpool Hospital and was observed to have the following injuries:

1. Haematomas to both parietal regions of his head;

2. A haematoma to the zygomatic (cheek) region of the left side of his face, which was very tender and swollen, with associated abrasions;

3. Erythema (redness) to the left mastoid region (behind the ear);

4. Erythema and tenderness to the lower cervical spine (base of the neck); and

5. Laceration and bruising to the tongue.

30. The victim complained of an ongoing headache. He had pain in his neck and was required to wear a neck brace when at the hospital.

31. The victim was discharged from hospital the following day but could not eat food for a period of time after the assault.

Arrest of the offender

32. The offender attended Cabramatta Police Station on 22 September 2016 of his own volition and he agreed to participate in an Electronically Recorded Interview of a Suspected Person (ERISP).

33. His version was that he attacked Tan Phong Nguyen (four punches) and Thanh Hien Nguyen (three punches) (but not Hong Anh Dang) because he feared for his safety. He said that he thought that they were drunk and may have been armed with knives or a gun.

34. The offender was placed under arrest.

Evidence

3. Before me are 7 exhibits. All exhibits except for exhibit 5 and 6 have been tendered by the Crown. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. Crown proposed facts;

2. The offender’s criminal history;

3. The offender’s custodial history;

4. Victim Impact Statement of Tan Phong Nguyen (Count 1); and

5. Victim Impact Statement of Thanh Hien Nguyen (Count 3).

4. Exhibit 2 is a 24-month report to the Ombudsman from the Department of Home Affairs pursuant to section 486N of the Migration Act 1958 dated 5 July 2019.

5. Exhibit 3 is a copy of communications between Mr James Moore, solicitor at the ODPP and Mr Troy Warmington, Senior Border Officer at Detention Operations NSW dated 6 May 2021.

6. Exhibit 4 is a chain of emails between Mr James Moore, solicitor at the ODPP and Mr Paolo Mezzatesta, Inspector at Detention Operations NSW and Mr Troy Warmington, Senior Border Officer at Detention Operations NSW.

7. Exhibit 5 is a statement by the offender dated 29 April 2021 to which is attached a 36 page report from the Australian Human Rights Commission titled “2011 Immigration Detention at Villawood” and a 6 page report from the Asylum Seeker Resource Centre titled “Christmas Island Detention Centre”.

8. Exhibit 6 is a transcript of the interview the offender gave to the police on 22 September 2019.

9. Exhibit 7 comprises two Corrective Services policies, one with respect to inmate telephones, and the other with respect to inmate computers.

Exhibits

10. I will now summarise some of the documents which have been placed before me.

11. Exhibit 1 contains the offender’s criminal history, which consists of a March 2013 destroy or damage property offence for which he received a 12 month section 10 bond.

12. Exhibit 1 also contains the offender’s custodial history which discloses that he was in custody for this offending from 21 March 2017 to 6 July 2017 when he was released on conditional bail into immigration detention where he has remained.

13. Also in exhibit 1 are the Victim Impact Statements of Tan Phong Nguyen and Thanh Hien Nguyen.

14. Mr Tan Phong Nguyen notes that since the day of the event he is no longer the same person. He is fearful when he goes out at night. He is scared that something like this will happen again and that he might not be so lucky the next time. He says that the incident placed him in the hospital in a coma which resulted in a large blood clot in his brain. He required cosmetic surgery and he now has scarring on his face and broken and missing teeth in his mouth. Because of the trauma, he was unable to eat and sleep for a period of time. His family too was greatly affected. He was unable to work to provide for his family and his business was placed in a very difficult situation. Both he and his family had a very traumatic experience from which they will never recover. Mr Nguyen says that his business had to find a replacement baker and that there was a large amount of profit lost as he had to pay for extra employees so that his business would not close down. He is still afraid to go out at night and his wife has become anxious and afraid for his health and well-being. He says that he will never be the same again. He is physically unable to work at his full potential.

15. Mr Hanh Hien Nguyen says that as a result of this incident his left eye was bruised and his tongue was torn from the impact to his face. He says that his left eye isn’t as good as his right eye and he often has dizziness and back pain. He has had to buy equipment to help his body with the pain. He says that he is no longer able to work and he cannot look for a job because of his injuries. He cannot drive a car because of his left eye injury. He is often scared at night and he has difficulty sleeping. He needs to take two tablets to sleep every night and he has nightmares on and off. Prior to this incident Mr Nguyen was a carer for his mother. However after this incident he could no longer drive and therefore cannot perform the same services for her. Since the incident he has felt depressed.

16. The court acknowledges the significant impact of the assaults on the three victims. It is hoped that the conclusion of these proceedings will assist their healing.

17. Exhibit 2, dated more than two years ago on 5 July 2019, discloses that on 13 September 2010, the offender arrived in Australia for the first time as the holder of a short stay business visa. On 12 December 2011, he was granted a temporary New Zealand citizen family relationship visa, valid for five years. On 13 December 2016, the offender became an unlawful non-citizen. In April 2017, NSW police advised the Department of Home Affairs that the offender had been remanded in criminal custody on 21 March 2017. On 4 July 2017, the offender was released from criminal remand and detained and transferred to Villawood Immigration Detention Centre (Villawood). On 24 August 2017 the ODPP issued a criminal justice stay certificate with respect to the offender which remains in force. On 31 August 2017, a delegate of the Minister refused to grant the offender a criminal justice stay visa. Whilst the offender remains the subject of a criminal justice stay certificate, he cannot be removed from Australia. It is noted that there have been no health or welfare issues raised to indicate that the offender’s placement is inappropriate. He has stated that he has two children in New Zealand with an ex-wife as well as a daughter in Australia. The Department understands that the offender receives visits from his family on most weekends. As at 5 July 2019, the offender had spent 730 days in immigration detention.

18. Exhibit 3 is a copy of email correspondence between Mr Moore and Mr Warmington that describes the conditions of detention during the offender’s stay at Villawood. It also includes a record of the offender’s visits since 4 February 2018. The correspondence mentions a summary of the offender’s incident history but to the extent that this document exists, it is not attached to the email.

19. Mr Warmington notes that an immigration detention facility is not a correctional facility and that detention service providers do not carry weapons and do not possess disciplinary powers. He says immigration detention is administrative detention. Detainees are not expected to adhere to any routine and no punitive measures are imposed for non-compliance. The offender is restricted insofar as he remains detained within an immigration detention facility and cannot leave unless he is escorted by detention service providers. His movements are limited to within his compound which contains a gym, dining area, library, and class activity area. He has access to other designated areas such as the visits area which is limited to specified times and a medical clinic. Detention service providers do not monitor with whom detainees associate and there are no lights out or lock down periods where detainees are confined to their rooms. The compound in which the offender is currently accommodated has a gym, basketball court, football field and garden area which is accessible 24 hours per day.

20. Further, an internet service is provided and detainees are permitted to access the internet using computers provided. Automated filters restrict access to certain sites. As a result of a June 2018 Federal Court decision, detainees are allowed mobile phones, laptops and tablets. Detainees are not permitted to travel in an unrestricted way away from Villawood. They may be escorted off site by detention service staff for medical or court requirements.

21. Detainees are entitled to receive visitors and arrangements are required to be made in advance. Previously, visiting hours were from 12 pm to 8 pm on Monday to Friday and from 10:30 am to 8 pm on Saturday and Sunday. Since the Covid 19 pandemic each compound has its own separate one hour visit session once or twice per day.

22. As at 6 May 2021, the offender had one professional visitor in 2021. He had two visitors during the calendar year 2020. He had 69 visits in 2019. He had 129 visits between February 2018 to December 2018. It is not known whether there were multiple visitors on any given occasion.

23. Detainees are not permitted to undertake any paid or voluntary work activities.

24. The information included in exhibit 4 relates to the time the offender has spent in immigration detention. It lists his movements between various facilities as follows:

1. 06 July 2017: entered immigration detention – Villawood;

2. 24 August 2020: transferred from Villawood to Yongah Hill;

3. 20 September 2020: transferred from Yongah Hill to North West Point (Christmas Island);

4. 04 March 2021: transferred from Christmas Island to Yongah Hill; and

5. 10 March 2021: transferred from Yongah Hill to Villawood.

25. It is noted that during his placement at Christmas Island the offender was accommodated in four different units/compounds. Mr Warmington was unable to say which compound had what facilities, but it was noted that the offender spent time in “Green 2”, “Support”, “White 1” and “Gold 1” compounds. Annexure B to exhibit 5 provides some explanation of two of these descriptors.

26. Exhibit 4 also includes responses from Mr Troy Warmington to specific questions asked by the Crown. Mr Warmington wrote that he did not have details of the incident history of the offender and that the Australian Border Force did not investigate reported incidents to determine whether or not a detainee has engaged in misconduct. He also said that in terms of classification, the offender has been rated as a high placement risk and high escort risk the entire time he has spent in immigration detention, but he did not provide any explanation as to why that was the case.

27. Mr Warmington noted that the offender is accommodated in the Hume compound at Villawood which is a stand alone high security compound within the detention centre.

28. Exhibit 5 is a statement of the offender signed and dated 29 April 2021. In that document the offender says that he has been held in immigration detention since the beginning of 2017. The majority of his time has been spent in detention at Villawood. Except for the first 12 months which he spent in the general population of the detention centre, he spent all other times in maximum security in what is known as stage 1- Hume compound which replaced the Blaxland compound.

29. The offender spent approximately six months in detention on Christmas Island in maximum security. Christmas Island was reopened in 2020 and the offender was one of the first people sent there. He says it was even worse than the maximum security at Villawood. The majority of people there were sent after having been convicted of a crime on the mainland. His experience at Christmas Island was that it was far worse than jail. He prefers being in jail than being at Christmas Island. Whilst at Christmas Island he could not see family at all and he was locked in all day save for a two-hour period when he could use the gym. There was no other time allowed for him to be outside. He says that the only reason he was removed from Christmas Island was because of his trial for the matters before the court. Punishment at Christmas Island was very bad. If you got into a fight, or refused to do what you were told or refused to go to an appointment you would be taken to a red zone which is the punishment compound, and where you are locked in for days without seeing any person. Food is brought to your cell and you are not allowed outside at all. This occurred at least once following a brawl after a football game.

25. The offender says that Villawood is not much different to Christmas Island. He would prefer to be in jail than at Villawood. Visits at Villawood are box visits just like jail. He says that Hume compound is worse than jail, and he can compare them because he spent time in custody in jail following this incident.

26. Hume compound is a maximum security facility, with high walls and fences which have barbed wire on top and security cameras everywhere. There is no privacy, including in all areas immediately outside the cells which are very much like jail cells. You cannot mix with people from other compounds and you cannot use their facilities like the gym. Everyone else can mix and mingle together. Just like prison, the cells are made up of a toilet and shower, which you can smell from the metal bed in the room. The metal bed is fixed to the wall. The cell is made of concrete walls approximately 3 m wide by 3 m deep. There is a window which cannot be opened.

27. The offender says that he agrees with the content of both annexures A and B to his statement.

28. The two reports annexed to exhibit 5 describe the conditions of detention in Villawood and Christmas Island and the many concerns that the Australian Human Rights Commission and the Asylum Seeker Resource Centre have had with respect to the conditions of detention in these centres.

29. Annexure A is a report of the Australian Human Rights Commission written following a visit to Villawood in February 2011. The Blaxland (Hume) compound was described as prison like and is the highest security compound. Concerns were raised about the ageing and inappropriate infrastructure, the lack of access to open grassy space and the use of separation areas. Intrusive physical security measures at Villawood create an environment that feels harsh and punitive. The centre is surrounded by high wire fences, some of which are alarmed or electrified and the internal compounds are separated by further high wire with thick metal fences. Many areas are under camera surveillance and there are static security guards stationed around the perimeter fences. This is the most restrictive prison like area in the detention network. There is virtually no privacy. The Commission expressed many concerns about the facilities at Villawood and made 18 substantive recommendations.

30. Annexure B is a document produced by the Asylum Seeker Resource Centre after a visit to Christmas Island in August 2016. The authors found an environment of fear and physical violence where men seeking asylum faced ongoing mental trauma and isolation. The authors passed through seven locked gates and doors to get to the designated visitor area. They noted that there were nine compounds which included two isolation and punishment areas and one protection area. Of those mentioned by Mr Warmington, White 1 is the isolation area in which the punishment regime is graded into three stages: total isolation, isolation with television and isolation with one hour on the sports field. Gold 2 was for protection, although it is now referred to as “privileges”. It is unclear what the offender’s Gold 1 status refers to. The authors concluded that Christmas Island is run as a high security military camp where control was based on fear and punishment, and where there is extensive use of extra traditional punishment by force, and isolation is evident. They noted that there was no monitoring or independent scrutiny of this isolated camp more than 2600 km from the nearest capital city Perth.

31. Exhibit 6 is the entirety of the offender’s interview with police on 22 September 2016, conducted without a Tongan interpreter. I note that at the conclusion of that interview the offender expressed some remorse, taking into account the limitations of communication. At the end of the interview the offender said, at answer 484, “…it’s really hard I wish they’re here to say sorry”.

32. Exhibit 7 comprises the two Corrective Services policies. The policy with respect to inmate telephones, dated 24 October 2018, relevantly notes that Corrective Services will meet the cost of all phone calls listed on a common auto dial list, which can include 10 personal numbers and 3 legal contact numbers, and 3 personal local phone calls and all legal phone calls for an unconvicted inmate. The policy with respect to inmate computers, dated 16 December 2018, relevantly outlines the circumstances in which inmates can access computers as part of their employment in a correctional centre, to participate in external and internal education and programs and to view and/or prepare legal material.

The Offender’s Evidence

38. The offender was cross-examined on his statement by Ms Sullivan on behalf of the Crown at some length through a Tongan interpreter via audio visual link. The offender gave his evidence from Villawood, and the interpreter was present at Campbelltown Court. Ms Conte-Mills and Ms Sullivan were present remotely, and I was at the District Court in Sydney.

39. In my opinion Mr Taufoou was candid in his evidence, and in some respects gave answers against his interest. I accept his evidence.

40. Ms Sullivan cross examined Mr Taufoou on only parts of his statement, and focused on what she suggested were the differences between being in State custody and in immigration detention. Mr Taufoou insisted that being in Villawood was worse than gaol, and that he is locked down in his compound at Villawood. Mr Taufoou said that access to medical attention was worse in immigration detention where he had to wait a month for a tooth extraction and even longer for dentures. He had not, however, accessed medical care in State custody. He agreed that he had unrestricted access to a gym at Villawood, but had only 2 hours access in State custody. He said that he had unrestricted access to a soccer field at Villawood, but not in State custody, and had access for only 2 hours at Christmas Island. He agreed that he had unlimited access to a garden at both Villawood and Christmas Island (where he planted some of the garden) but had no such access in State custody. Mr Taufoou said that he had unrestricted access to computers, printers and the internet at Villawood, although one has to make an appointment to use them. In State custody, he said that he had access to printers and computers but not to the internet. There was no internet available at Christmas Island. As to kitchen facilities, Mr Taufoou said that they were available whenever he wanted (although like gaol he could only purchase food as “buy-ups”), but there were no such facilities in gaol. Ms Sullivan suggested that there was no routine in immigration detention. Mr Taufoou agreed that there were fewer rules and less routine in immigration detention, but he noted that he still was subject to a head count each morning which he was required to get out of bed and attend. He agreed that there was no bedtime and “lights out” in immigration detention, which was not the case in State custody, although he said that he had a light in his cell in custody. He agreed that from some time in 2018, immigration detainees could have mobile phones, but no questions were asked about whether or not he had, or could afford to have a mobile phone.

Objective Seriousness

Count 1

41. Count 1 is an offence of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s33(1)(b) of the Crimes Act 1900.

42. The Crown submitted that the seriousness of such an offence may be assessed by reference to the viciousness of the attack and the severity of the consequences: see R v Kama (2000) 110 A Crim R 47 at [17], and that generally the extent and nature of the injuries will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence: R v Mitchell (2007) 177 A Crim R 94 at [27]. Thus, she submitted that the graver the injury, the more serious the offence. The objective gravity of an offence under section 33 is not determined solely by considering the injuries, but by also considering the circumstances in which they were inflicted. Ms Sullivan submitted that a section 33 offence involving an unjustified attack will elevate its objective gravity, as an attack upon an innocent citizen who is otherwise going about his or her ordinary business is a crime of increased seriousness: see R v Woods (NSWCCA, 9 October 1990, unreported).

43. The Crown submitted that count 1 falls at about the mid-range of objective seriousness taking into account the following matters:

1. The offence was unprovoked. Here the offender was a complete stranger to the victim, who came to the attention of the offender when he was driving his friend home. I accept this submission;

2. The victim was repeatedly attacked. So much is apparent from the facts as I have found them;

3. The attack was extended and protracted, continuing after the offender had moved his car and had an opportunity to leave the scene. Rather than leaving, he returned and further attacked the victim. So much is apparent in the facts I have found.

4. As a result of the assault, the victim sustained serious injuries. There is no doubt that the injuries were serious: see paragraphs 26 to 28 above. The Crown does not submit that the victim’s injuries are an aggravating factor pursuant to s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), as the infliction of serious harm is an element of the offence.

44. Ms Conte-Mills does not dispute that the offending falls at about the mid-range. However, she submitted that there was no evidence that the offence was a planned, organised and/or a joint criminal activity. It was, rather, a spontaneous series of events based on Mr Taufoou’s (misconceived) perception that he and his family were in danger. Whilst it is certainly the case that the offending was spontaneous, noting that the jury rejected self-defence and the brutality of the attack, I reject any suggestion that the offender’s perception mitigates any finding of objective seriousness.

45. Ms Conte-Mills also submitted that the injuries suffered by the victim did not result in permanent or life-long damage. I observe that the facts I have found set out the damage suffered by the victim, and I accept that that the offending would have caused the victim significant distress. I do not, however, find an aggravating feature of substantial physical or emotional harm.

46. I take into account the legislative yardsticks of the maximum penalty of 25 years imprisonment and the standard non-parole period of 7 years imprisonment. In my opinion, the offending falls at about the mid-range of objective gravity.

Count 3

47. Count 3 is an offence of assault occasioning actual bodily harm contrary to s59(1) of the Crimes Act 1900.

48. The Crown submitted that count 3 falls above the mid-range of objective seriousness for offences of this type, taking into account the following matters:

1. The offence was unprovoked. I accept this submission;

2. The victim was repeatedly assaulted. I accept this submission as well;

3. Like the attack on the victim in count 1, the attack on this victim was protracted. It included the offender chasing him when he was trying to run away, and the offender continuing to assault him. In addition to punching this victim, the offender also kicked this victim and stomped on his head, following which the victim lost consciousness. So much is apparent from the facts; and

4. As a result of the assault, the victim sustained injuries at the higher end of the range for actual bodily harm offences. The injuries sustained are set out at paragraphs 29-31 above.

49. The Crown submitted that attacks involving kicking and stomping are a familiar method of inflicting serious injury and ought to be regarded as abhorrent and worthy of condign punishment: see R v Wright [1998] VSCA 84, cited in AM v R [2012] NSWCCA 203. I entirely agree.

50. Ms Conte-Mills did not disagree with the Crown’s assessment of objective seriousness. However, as noted above, she submitted that there was no evidence that the offence was a planned, organised and/or a joint criminal activity. It was, rather, a spontaneous series of events based on Mr Taufoou’s (misconceived) perception that he and his family were in danger. As I have already have said, whilst it is certainly the case that the offending was spontaneous, noting that the jury rejected self-defence and the brutality of the attack, I reject any suggestion that the offender’s perception mitigates any finding of objective seriousness.

51. Ms Conte-Mills also submitted that the injuries suffered by the victim did not result in permanent or life-long damage. Whilst I observe that the Victim Impact Statement suggests otherwise, it was untested and there was no medical evidence tendered in support of the victim’s assertions. I do not find an aggravating feature of substantial physical or emotional harm.

52. I take into account the legislative yardstick of the maximum penalty of 5 years imprisonment. In my opinion, the offending lies somewhere at about the mid-range of objective gravity.

Count 4

53. Count 4 is an offence of assault pursuant to s61 of the Crimes Act 1900.

54. The Crown submitted that count 4 falls at about the mid-range of objective seriousness for offences of this type, taking into account that the offence was unprovoked. I find that the offence was unprovoked.

55. Ms Conte-Mills submitted that there was no evidence that the offence was a planned, organised and/or a joint criminal activity. It was a spontaneous series of events based on Mr Taufoou’s (misconceived) perception that he and his family were in danger.

56. The offender punched Hong Anh Dang to the face, causing him to fall down. The punch was hard and it caused the victim pain. He suffered a bloody nose and a red left cheek and felt dizzy. The offending is thus objectively serious.

57. I take these matters into account with the legislative yardstick of the maximum penalty of 2 years imprisonment. In my opinion, the offending sits between the low and the mid-range of objective seriousness.

58. I note that it is agreed that there are no aggravating factors relevant to sentence considerations and the Crown does not rely upon any aggravating factors pursuant to s21A of the Sentencing Act.

Subjective Circumstances

Prior Criminal History/ Prior Good Character

59. Ms Conte-Mills submitted that Mr Taufoou had a minor criminal record having received a s10 bond for 12 months (without conviction) for a charge in 2013 for destroy/damage property and a non-conviction for a fail to appear on 1 February 2017, the circumstances of which appear to be in doubt, as the Crown was unable to enlighten me as to what occurred on that occasion.

60. The Crown observed that the offender had a very limited criminal history.

61. For the purposes of this sentence I accept that the offender is entitled to some leniency because of his limited prior criminal history.

62. Ms Conte-Mills also submitted that Mr Taufoou was otherwise a person of good character. She observed that he attended the police station the morning after the events to hand himself in and at all times cooperated with authorities, which was noted by interviewing police. I give this submission little weight.

Time in custody/Quasi custody

63. There is a real issue in this matter as to what amount of time spent in immigration detention should count as quasi-custody.

64. The offender was arrested and charged in relation to these matters on 22 September 2016. He was granted conditional bail at that time.

65. The offender’s custodial history reflects that he was admitted into custody on 21 March 2017 and released to immigration detention (on conditional bail) on 4 July 2017 where he has remained ever since, ie for more than four years awaiting the trial which took place in March 2021. There is no evidence that Mr Taufoou has ever breached his bail conditions.

66. Ms Conte-Mills submitted that Mr Taufoou appears to be on a ‘deportation trajectory’ with no possibility of being able to remain in Australia, and that he is awaiting the sentencing outcome. I am mindful that the likelihood of deportation is irrelevant to structuring the offender’s sentence.

67. Mr Taufoou has been in some form of continuous custody since 21 March 2017, with the initial 107 days of this period being spent in State custody and the balance in immigration detention at Villawood and Christmas Island. I find that the circumstances of his immigration detention are as follows. Mr Taufoou’s freedom and liberty has at all times been severely restricted. He has been housed in centres that have been surrounded by walls and wire fences, with security cameras everywhere. He has not been able to leave detention for any reason. Conditions have been harsh. He has been housed in cell-like accommodation with little or no privacy, and has been in a maximum security compound during the majority of his time in detention. He has been subject to punishment for apparent infractions. His access to the outdoors has been restricted, and he has had little recreation and little meaningful work. He has had some access to the internet. Since 2018, he has evidently been permitted to have a smartphone, computer or tablet, but there is no evidence that he has been able to exercise this right. He has at times been able to have visitors, as do inmates in custody. He had no visitors at all whilst at Christmas Island, where conditions were even harsher than at Villawood. I accept Mr Taufoou’s evidence with respect to the conditions of his immigration detention.

68. Whether or not these conditions amount to quasi custody is a question of fact. In the usual quasi-custody case, the court is looking at the conditions of residential rehabilitation and whether the conditions under which the offender finds himself or herself amount to quasi-custody. The freedom of movement of the individuals engaged in such programs is generally limited to the premises where they stay, they are under constant supervision, they are subjected to strict rules regarding their behaviour and they have no or very limited engagement with anyone outside of the facility.

69. The rationale is the need to factor into the sentencing exercise the restriction on an offender’s liberty: Small v R [2018] NSWCCA 290 at [37] per Hoeben CJ at CL. Backdating a sentence because of quasi custody is a discretionary matter for a sentencing judge.

70. Ms Conte-Mills submitted that the court should backdate the sentence not only for the 107 days spent in State custody, but to account for the entirety of the time that Mr Taufoou has spent in immigration detention as the conditions he faced in immigration detention were just as onerous (if not more onerous) than the conditions in State custody. Although, she conceded that some allowance ought to be made to account for the offender’s time in immigration detention, Ms Sullivan submitted that the court should not allow 100% of the time spent in immigration detention as time spent in custody and the court should substantially discount that percentage. She submitted that the offender had considerably greater freedom and liberty in immigration detention, pointing to his evidence about unrestricted access to a garden and playing fields, access to kitchen facilities and access to the internet at Villawood. She also pointed to the lack of rules and routine. With respect to the latter, in my opinion, a lack of routine may be more onerous than an enforced routine. Aside from his evidence about gardening at Christmas Island, there is no evidence that the offender has been engaged in any meaningful activities whilst in immigration detention. He is likely to have had access to some sort of meaningful work in State custody.

71. Section 24 of the Sentencing Act provides that the sentencing court must take into account the time already served in custody. Section 47(2)(a) of the Sentencing Act provides that a court may direct that a sentence of imprisonment is taken to have commenced on a day occurring before the day on which the sentence is imposed. It was agreed by both Ms Conte-Mills and Ms Sullivan that any order I make with respect to time spent in immigration detention that I allow as pre-sentence custody and take into account for the purpose of the commencement of Mr Taufoou’s sentence should be pursuant to section 47(2).

63. There is no specific statutory requirement that a sentencing judge must take into account time spent in immigration detention as time served as pre-sentence custody although it is clear from the authorities that immigration detention may be considered as quasi-custody.

64. In Al-Kateb v Godwin [2004] HCA 37 at [264], Hayne J with whom Callinan J agreed, said that whilst immigration detention was not a form of punishment, it could nonetheless easily be considered as punishment, because immigration detention centres had:-

many, if not all, of the physical features and administrative arrangements commonly found in prison.

74. In R v Dadash [2012] NSWSC 1511, RA Hulme J sentenced Mr Dadash for an offence of affray committed at Villawood. He allowed the period spent by Mr Dadash in immigration detention after being granted bail as pre-sentence custody and backdated his sentence accordingly.

75. In Islam v The Queen [2014] ACTCA 2 the Court of Appeal of the ACT noted that the Crown conceded before the sentencing judge that the entire period that Mr Islam had spent in immigration detention in Villawood while awaiting his trial should be accounted for when backdating his sentence (at [7]). The backdating provision in section 63(2) of the Crimes (Sentencing) Act 2005 (ACT) uses the same expression – “held in custody in relation to the offence” – as that found in section 24 of the Sentencing Act.

76. More recently, Lasry J in the Supreme Court of Victoria found in R v Mohamed [2016] VSC 581 at [32] and [59], that the time spent by Mr Mohamed at Villawood and Maribyrong Detention Centres when he was on bail for the offence for which he was prosecuted (997 days) was to be taken into account as pre-sentence detention and be reckoned as time already served.

77. In this case, Mr Taufoou was taken into State custody on 21 March 2017 and was released to immigration detention on 4 July 2017 where he has remained at Villawood and Christmas Island Detention Centres. I find that those centres are prison-like, isolated and that the offender’s freedom and liberty has been significantly restricted. I find that the conditions of his detention have been at least as restrictive as imprisonment in State custody and I allow all of his immigration detention as 100% full time custody.

78. I propose to backdate the sentence to 21 March 2017.

Remorse

79. Ms Conte-Mills submitted that Mr Taufoou expressed remorse during the interview he gave police on 22 September 2016. I give this statement very little weight in circumstances where he pleaded not guilty to the charges and pursued self-defence unsuccessfully. I have no evidence before me that the offender has any insight whatsoever into his offending.

General Deterrence and denunciation

80. The Crown submitted that general deterrence is an important consideration in such matters, particularly in cases which involve violence on the streets and unprovoked attacks on people going about their ordinary business.

81. It was conceded by Ms Conte-Mills that general deterrence has a role to play in this sentencing exercise.

82. I agree. So serious is the offending that general deterrence and denunciation clearly have a significant role to play in this sentencing exercise.

Personal Deterrence and Prospects of Rehabilitation

83. No extensive submissions were made by the Crown or by Ms Conte-Mills with respect to personal deterrence and the offender’s prospects of rehabilitation.

84. The offender’s prospects of rehabilitation are unknown. It is hoped that upon expiration of his sentence that the offender will rehabilitate himself for his own benefit and for the benefit of his three children.

Hardship in custody

85. It was submitted by the offender that he has suffered extra-curial punishment whilst in detention and that as a result of these charges, and his continuing detention, Mr Taufoou now has no relationship with his partner or daughter in Australia. Aside from the period when Mr Taufoou was in immigration detention on Christmas Island, he has had access visits like any other offender. I do not accept that he has suffered any appreciable extra curial punishment.

Covid-19

86. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence.

87. Serco, the operator of Villawood and Christmas Island Detention Centres imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the detention population. The evidence is that visitation was restricted in 2020. No doubt there are restrictions currently. These measures, though designed to protect detainees against contracting the virus, will have necessarily negatively impacted the quality of life enjoyed by Mr Taufoou. However, the impact is difficult to quantify with any degree of specificity. I take the pandemic into account as a matter to synthesise on sentence.

Threshold

88. The Crown submitted that the only sentence reasonably open to the court is one of full-time custody, which would reflect the seriousness of the offences, and the need for general deterrence.

89. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Totality

90. The Crown submitted that in this case, each of the offences relates to a different victim and accordingly, a degree of accumulation is warranted.

91. Ms Conte-Mills submitted that accumulation is a discretionary matter for the sentencing judge in accordance with established principles. She further submitted that sentences may be served concurrently if the offences have features in common or if the offences are substantially contemporaneous and connected.

92. The overall sentence should not exceed the total criminality, but at the same time must reflect the total criminality involved. In applying the principle of totality, the question is whether the sentence for one offence can comprehend and reflect the criminality of the others. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

93. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances.

94. I have also considered the principle of proportionality.

95. In my opinion, there should be some partial accumulation.

Special Circumstances

96. Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is the offender’s lack of support in Australia and the fact that this is his first time in custody.

Sentence

97. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community.

98. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

99. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalties and the standard non-parole period for count 1 and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

100. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

101. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment of 6 years 6 months.

102. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For count 1, cause grievous bodily harm to person with intent, I would have imposed a period of imprisonment of 5 years and a non parole period of 3 years and 4 months.

2. For count 3, assault occasioning actual bodily harm, I would have imposed a period of imprisonment of 2 years and 3 months.

3. For count 4, assault, I would have imposed a period of imprisonment of 9 months.

Orders

103. Mr Taufoou please stand.

104. I convict you of:-

1. cause grievous bodily harm to person with intent contrary to section 33(1)(b) of the Crimes Act 1900;

2. assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900; and

3. assault contrary to section 61 of the Crimes Act 1900.

105. I impose an aggregate term of imprisonment of 6 years and 6 months, commencing from 21 March 2017.

106. I impose a non-parole period of 4 years and 4 months. Your head sentence will expire on 20 September 2023.

107. You were eligible to be released on parole on 20 July 2021.

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Decision last updated: 16 August 2021