R v Tubakibau

[2023] NSWDC 294

District Court

New South Wales

Medium Neutral Citation:

R v Tubakibau [2023] NSWDC 294

Hearing dates:

21 July 2023

Date of orders:

28 July 2023

Decision date:

28 July 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The offender is convicted and is entitled to a 10% discount.

2 I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

•   Count 1 – taking into account the matters on the Form 1 – 7 years with a non-parole period of 4 years and 6 months;

•   Count 2 – 18 months.

3   I impose an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 5 years to date from 26 January 2022. The non-parole period will expire on 25 January 2027 and the head sentence will expire on 25 July 2029.

4   The offender will be eligible to be released on parole on 25 January 2027.

Catchwords:

CRIME — Violent offences — Cause grievous bodily harm with intent

CRIME — Violent offences — Common assault

CRIME — Domestic violence — Domestic violence offence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Hoskins v R [2021] NSWCCA 169

Muldrock v R (2011) 244 CLR 120

Ngatamarki v R [2016] NSWCCA 155

Palijan v R [2010] NSWCCA 142

R v Henry (1999) 46 NSWLR 346

R v Olbrich (1999) 199 CLR 270

R v Todorovic [2008] NSWCCA 49

Category:

Sentence

Parties:

Rex (Crown)
Sailosi Dausaiga Tubakibau (Offender)

Representation:

Counsel:
Mr J Wilcox (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Circle Bridge Legal (Offender)

File Number(s):

2022/25629

Publication restriction:

None

JUDGMENT

1. Sailosi Dausaiga Tubakibau (the offender) appears for sentence after pleading guilty in the District Court to the following offences:

Count H86502928	Offence	Maximum Penalty and SNPP
1	Cause grievous bodily harm with intent to cause grievous bodily harm (DV), contrary to s 33(1)(b), Crimes Act 1900	25 years imprisonment; 7 years SNPP
2	Common assault (DV), contrary to s 61, Crimes Act 1900	2 years imprisonment

2. The offender also asks the Court to take into account the following offences when passing sentence for Count 1:

1. destroy or damage property, contrary to s 195(1)(a), Crimes Act 1900; and

2. intentionally choke a person without consent (DV), contrary to s 37(1A), Crimes Act 1900.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the District Court and is entitled to a 10% discount on sentence: s 25D(2)(b) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147.

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. The offender was 29 years old at the time of the offences. The primary victim is Jordan Collins. At the time of the offences, Ms Collins was 24 years old and had been in an intimate relationship with the offender for approximately three to four years. The second victim is Ms Collins’ daughter from a previous relationship. She was seven years old at the time of the offences.

9. Ms Collins and her daughter resided in an apartment that was on the top floor of a multi-storey apartment complex in Glebe. The offender stayed with the victims at this residence but was not on the lease.

10. On 25 January 2022, the offender finished work at around 2:40pm. At around 3:49pm, he sent Ms Collins a message advising that he was at a friend’s house “smoking”.

11. Ms Collins and her daughter spent the day at Dawn Fraser Baths (the pool). While they were at the pool, she posted a photo to her Instagram account with a caption that suggested that someone had thought she was her daughter’s sister.

12. At 3:48pm, the offender sent Ms Collins a message asking who had made that comment and Ms Collins responded saying that it was a male working in the canteen. The offender replied and expressed insecurities about Ms Collins’ interaction with the worker, insisting that the worker was flirting with her. A series of messages were exchanged until around 5:37pm, at which time the offender said he was frustrated with the situation. At 5:50pm, the offender sent Ms Collins a text apologising for “overreacting” and saying that he would try not to get jealous.

13. They then exchanged messages about Ms Collins picking up keys from the offender, who was at a friend’s house. Ms Collins went to the offender’s friend’s house with her daughter, and they stayed there for 45 minutes before leaving. The offender stayed at his friend’s house.

14. At around midnight, the offender arrived at Ms Collins’ residence. At the offender’s request, Ms Collins, her daughter and the offender drove to the offender’s friend’s house and then returned to Ms Collins’ residence at around 12:30am on 26 January 2022. Once inside, the argument about Ms Collins’ Instagram post re-commenced. During the argument, the offender became progressively angrier and more aggressive with Ms Collins. She tried to calm him down but was unsuccessful in doing so.

15. The offender began throwing things around the house and causing damage to Ms Collins’ property. The offender went to the kitchen and ripped out a kitchen drawer where the knives were kept. This caused damage to the wooden drawer and the sliding mechanism within the kitchen bench.

16. The offender grabbed a knife, held it to his own throat and threatened to kill himself in front of Ms Collins and her daughter. He said, “You want me to do this, want me to do this?”, instilling significant fear in Ms Collins and her daughter. Ms Collins was yelling “go away” because she was concerned for her daughter. At some stage, the offender cut his hand with the knife and it started bleeding. The offender then threw Ms Collins’ iPhone through a glass window, causing the window to break and the iPhone to fall to the ground from the top floor, where it sustained serious damage. The offender smashed a ring light and stand. The stand was bent and damaged beyond repair, and the ring light was smashed.

17. The offender then choked Ms Collins by placing his hands around her neck. The offender choked Ms Collins for at least 30 seconds to the point that she had difficulty breathing. Whilst choking her, the offender said that she had to “talk to him” or he would not let go. Ms Collins thought she was going to die. Whilst this was happening, her daughter was trying to get the offender off Ms Collins. Ms Collins screamed out for help several times, before using her arms and legs to try to get the offender’s hands off her neck.

18. Ms Collins walked into her bedroom and the offender followed behind her. Ms Collins ended up on the other side of the bed, on the floor between her desk and her bed. The offender “pounced” on her and punched her in the face at least four times with a closed first. The child witnessed the assault.

19. The offender pushed the child hard in the face whilst she was trying to defend her mother. He also pulled her hair. The child was terrified throughout the incident and was repeatedly screaming at the offender to get off her mother.

20. The incident was heard by numerous other occupants of the apartment block, and they called police. Police arrived at approximately 1:35am. They heard smashing and screaming upon arrival. Police entered the apartment and announced their appearance. They observed blood spatter on the walls and carpet as they entered the hallway.

21. Police walked into the bedroom and observed the offender standing over Ms Collins with his back to police. The offender was wearing a pair of jeans but no shirt and had blood on his head. Police drew a firearm and a taser and aimed it at the offender, who complied with police requests to get on the ground. The offender was handcuffed. The offender had blood on his hands, chest and stomach area, and on his pants.

22. Ms Collins’ daughter was covered in blood and screaming at police to help her mother. Police observed that she had a red mark on her head. Ms Collins was at the far side of the room groaning.

23. The offender was on the floor yelling aggressively at police to “shoot” him and began smashing his head on the floor. He was informed that he was under arrest and told police to “end his life” and that he wanted to die. The offender was conveyed to Newtown Police Station.

24. Ms Collins had a large amount of blood covering her face, hands, arms and legs. She was crying and police could see that she had blood flowing out of her nose. She told police that her face hurt a lot and that she was in a lot of pain. Police also spoke to her daughter, who was very distressed and crying sporadically. She told police that the offender pulled her hair and that she saw the offender assaulting her mother.

25. Paramedics arrived at 1:52am to treat Ms Collins’ injuries. She was conveyed to Royal Prince Alfred Hospital. She presented with the following injuries:

1. significant facial swelling involving zygoma (cheekbone) and bilateral eyelid swelling;

2. left-sided epistaxis (bleeding from left nostril) and blood in the pharynx;

3. left subconjunctival haemorrhage (bloody eye);

4. diffuse oedema on the eyelids and ecchymoses as well as an open palpebral fissure;

5. bruising to the left medial aspect of her elbow, left anterior shin and right knee;

6. anterior abrasions and ligature marks on the left side of her neck and base of the right side;

7. 1cm laceration to the left eyebrow; and

8. redness to the neck with faint red marks.

26. Ms Collins also had the following injuries that required surgical intervention:

1. complex left facial fracture with extensive comminution including a Le fort Type III and tripod configuration (broken cheekbones, nasal bone and other bones of the face); and

2. a blowout fracture of the interior left orbital floor with inferior rectus muscle oedema (broken eye bone with swelling of the eye muscle without it being caught in the break).

27. On 27 January 2022, Ms Collins underwent an ophthalmological procedure consisting of a laser barrier retinopexy, performed to both breaks. Ms Collins remained in hospital between 26 and 28 January 2022. She returned on 2 February 2022 and underwent operative fixation of her complex facial fractures by the plastic surgery team. She underwent an open reduction internal fixation surgery of the left zygomaticomaxillary complex fracture as well as surgical reconstruction of the orbital floor. The surgery lasted three hours and twenty minutes. The nasal bone fracture was also repaired during surgery. The wounds on the left upper eye lid, upper GBS and subcilliary pull through were sutured. During the surgery, four bone screws and three plates were inserted to fixate the victim’s facial fractures. A fragment of the left orbital floor remained hinged inferiorly after the surgery. Ms Collins was discharged on 3 February 2022 with an extensive discharge plan with ongoing surgical follow-up appointment and numerous medications. She also had ongoing treatment with her GP who, during their consult on 7 February 2022, noted she had extensive bruising across her face and around both eyes. Dr Fox noted that Ms Collins had ongoing bruising to the left eye and the face and some complications such as fluid leaking from her nose.

28. The offender was taken from Newtown Police Station to St Vincent’s Hospital. He had cuts on his hands which needed stiches and a broken hand and a small hole in his chest from a previous incident. He also expressed suicidal ideation. On the way to the hospital, he told police that he had consumed a case of beer and some ketamine. He was admitted to the Psychiatric Emergency Care Centre for assessment and management. He was returned to police custody on 28 January 2022. He declined to be interviewed but consented to forensic procedures being performed. The offender sent messages apologising to Ms Collins on 26 and 27 January 2022. Ms Collins reported these messages to police.

Psychological Reports

29. The Crown also tendered the following psychological reports relating to the treatment of the victims:

1. Jannie Cheng dated 19 July 2023 (relating to the child); and

2. Courtney Morris dated 19 July 2023.

30. The content of those reports can be summarised as follows.

31. The child was referred for counselling on 1 March 2022. She presented with anxiety, heightened sensitivity to loud noises, being easily startled, having difficulty with concentration, heightened emotional reactivity, fear of sleeping alone, flashbacks to the assault and needing constant reassurance from her mother. The child attended fortnightly counselling sessions between March 2022 and February 2023, after which they became weekly sessions. There has been some gradual improvement in her symptoms, but she continues to require ongoing psychological support to assist her with anxiety and emotional regulation. She is fearful that someone will break into her home at night and attack her mother. She continues to have a heightened sense of insecurity.

32. Ms Collins was referred for counselling on 28 January 2022. She has reported feeling extremely unsafe and fearful for her own safety and that of her daughter. She has experienced feelings of low self-worth, emotional lability, low mood, dissociation, difficulty sleeping, confusion, social isolation, overthinking, increased startle response, anxiety and irritability. These symptoms impacted her capacity to study and work. The victim continues to engage in regular counselling for the trauma caused by the offences.

The Offender’s Case on Sentence

33. The offender tendered the following documents:

1. psychiatric report of Dr Gerald Chew dated 1 January 2023;

2. letter from the offender dated 14 July 2023;

3. character reference of Charmaigne Weldon (mother) dated 16 July 2023;

4. character reference of Allienttia Weldon (sister) dated 16 July 2023;

5. character reference of Kieran Barrett (friend) dated 16 July 2023;

6. character reference of Davina Mahlstedt (former partner) dated 16 July 2023; and

7. character reference of Iliesa Tubakibau-Weldon (brother) dated 16 July 2023.

34. I have taken into account the entirety of those documents in coming to an appropriate penalty. What follows is a precis of the evidence relied on by the offender.

35. The offender is a 30 year old man. His mother is Aboriginal, and his father is Fijian. He grew up in the Rozelle/Balmain area. His parents separated when he was around two or three years old. However, they remained living together and co-parented until he was around 11 years old.

36. The offender has seven siblings in total, including five half-siblings.

37. The offender was physically abused by his father. He also witnessed his father severely abuse his mother, recalling an occasion where his father “cracked her skull”. After this incident, his father was charged and later deported.

38. At age 11, he also witnessed his brother attempt to take his own life by hanging, and he had to cut him down and perform CPR.

39. He reported that schooling was difficult and that he experienced significant racism and discrimination because he was poor.

40. The offender left school during Year 10. He later completed Year 10 at TAFE. He reported completing two years of a business degree at UTS. He has a Certificate III and IV in Fitness. He was, prior to his incarceration, the manager of a gym. He has worked in labouring, construction and personal training.

41. The offender had an 11 year relationship with his former partner. They had their first child together when the offender was 15. Their first child was premature and subsequently died. He has three surviving children, aged 7, 10 and 14 with his former partner.

42. The offender reported that his relationship with Ms Collins was tumultuous.

43. The offender started using cannabis at age 14. At the time of the offences, he would smoke around 2 grams per day. He started drinking alcohol at age 14 and would drink every weekend. In the two years leading up to the offences, he would drink up to 12 beers per night. He used methamphetamine, heroin, MDMA, ecstasy and cocaine sporadically.

44. At the time of the offending, he had been using cannabis and ketamine and consuming alcohol. He reported being extremely emotional and suicidal.

45. The offender reported a long history of self-harm and suicide attempts, dating back to his early teenage years.

46. Dr Chew opined that the offender meets diagnostic criteria for Borderline Personality Disorder and Major Depressive Disorder. Dr Chew opined that there was a causal link between his mental health and offending behaviour. The offender’s borderline personality structure contributed to the intense relationship argument, poor affect control and heightened emotional reactivity. His use of substances likely intensified his symptoms.

47. The offender has expressed remorse to Dr Chew, his mother, sister and former partner and in his letter to the Court. He recognised the physical, psychological and emotional impact of his offending on the victims.

48. The offender spent 105 days between June and December 2022 in his cell as a result of COVID-19 lockdowns.

49. The offender’s character referees described the offender as a motivated, compassionate person and describe the offences as out-of-character. The offender’s former partner wrote that the offender’s incarceration has significantly impacted their children.

Consideration

Objective seriousness

50. The offences involve significant objective gravity.

51. The victim and the offender had been in an intimate domestic relationship for between three to four years at the date of the offence. The offences represent the abuse of a relationship of trust. The offender exploited a difference in physical strength over the victims. The offences were not planned or premeditated.

52. The s 33 offence involved a number of punches to the same area of the victim’s face. The punches were forceful blows that caused really serious injuries. The punches were delivered when the victim was pinned to the ground and defenceless. The offender punched the victim intending to inflict really serious injury on her. The degree of violence in the attack was significant. The offending conduct only ceased as a result of the arrival of the police.

53. The physical injuries inflicted on Ms Collins were substantial. She sustained complex fractures to her cheek, nasal bones and eye socket. She required hospitalisation and had to undergo long and difficult surgery to treat her facial injuries that involved the insertion of metal plates and screws. She also had to endure painful laser surgery to repair the retina in her eye. Immediately after the incident, the victim was so disfigured that her daughter was scared by her appearance. The victim’s appearance in the photographs taken by the police support her daughter’s reaction. The victim continues to suffer pain in her right eye and has difficulty with chewing. She has suffered some mild deformity of her face that is apparent from looking at her.

50. Ms Collins has also suffered substantial psychological distress as a result of the offence. The assault itself would have been a terrifying experience for the victim. Immediately after the incident, the victim was overcome with emotions. She was hypervigilant, could not sleep and isolated herself in her home. The trauma experienced by the victim affected her ability to work and to undertake her university studies. The victim has experienced anxiety about the impacts of the offences on her daughter. The victim is fearful of the offender. The victim requires and is receiving ongoing counselling.

51. The offender pushed the child hard in the face and pulled her hair as she tried to defend her mother. The experience, including the assault on her, would have been a terrifying one for the child. The child has and continues to suffer psychological distress as a result of the offences.

52. I am satisfied that the offences will have long lasting impacts on both of the victims.

53. The offender had a difficult upbringing. He was exposed to domestic violence between his parents. His father was incarcerated and then deported. He witnessed self-harm by others as a child. He experienced racial discrimination at school. He has a life-long history of unstable interpersonal relationships. He turned to substance use and alcohol abuse to assist with his emotional regulation, which worsened his symptoms. His first use of drugs and alcohol occurred at an age when he could not make an informed choice: R v Henry (1999) 46 NSWLR 346 and R v Todorovic [2008] NSWCCA 49. The offender experienced the trauma of losing a child when he was only 15 years of age. He has developed borderline personality disorder which impairs his ability to regulate his emotions and to control his anger. In all the circumstances, his moral culpability for the offences is reduced: Bugmy v The Queen (2013) 249 CLR 571 and Hoskins v R [2021] NSWCCA 169 at [57]-[61] (Brereton JA).

54. I have taken into account the maximum penalty and the applicable standard non-parole period.

Deterrence

59. General deterrence is of significance to the offences before the Court. Domestic violence is prevalent in the community. The penalty imposed must signal to others intending to commit similar crimes that they will be met with significant punishment.

60. General deterrence may be afforded less weight where an offender suffers from a mental condition because the offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53] – [54]. The extent of any reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27].

61. At the time of the offences the offender was displaying signs of mental distress. He threatened to kill himself, cut his hand with a knife and asked the police to shoot him when they arrived. He was taken to St Vincent’s Hospital and admitted as an involuntary patient. His principal diagnosis was borderline personality disorder. I accept that his mental condition comprising of a number of conditions was a longstanding one and that it was causally related to the offending conduct: DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. His borderline personality disorder made him prone to intense anger that he could not control, causing him to attack the victims in the manner that he did. There is no evidence that the offender did not know what he was doing or that he did not understand the gravity of his actions. The weight to be afforded to general deterrence can be reduced to some extent.

62. There is also a need for specific deterrence. The offender has some criminal record that reflects his difficulty with domestic relationships. He is likely to commit further domestic violence offences without significant treatment of his underlying mental condition: De La Rosa [177]. On a positive note, the offender has been receiving anti-depressant medication and psychological treatment in custody.

Aggravating factors

63. The offences occurred in the home of the victims, where they were entitled to feel safe: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

64. The s 33 offence occurred in front of a child: s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999. The child was terrified during the ordeal and there is evidence that the offences have caused her significant psychological trauma which is likely to endure for some time.

Mitigating factors

65. The offender does not have a significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender’s criminal history is fairly limited, but there are a number of domestic violence related offences.

66. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has accepted treatment in custody and has expressed a willingness to engage in treatment and interventions. It is likely that whilst he has been on remand that he has not been able to access programs that might otherwise be available to him after he is sentenced. He has also expressed positive plans for the future. He wants to get a job and to be a better father to his children. He has good support from his mother, siblings and the mother of his children. They will provide him with accommodation and work when he is released from custody. Against these positive factors, the offender has no demonstrated capacity to engage in drug rehabilitation or mental health treatment in the community.

67. The offender has expressed remorse to Dr Chew, to his referees and to the Court: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. In his letter to the Court the offender has demonstrated insight into the wrongfulness of his actions and the matters that contributed to his offending conduct. I am satisfied that he has accepted responsibility for the offences and that his contrition is genuine.

68. I will take into account the offender’s pre-sentence custody by backdating the sentence imposed to the date of his arrest on 26 January 2022.

69. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I note that the offender has been locked in his cell for a more than 100 days as a result of these restrictions. I am satisfied the offender’s time in custody has been and will continue to be more onerous. It is likely that the restrictions will continue to be imposed for some time into the future.

70. I also accept that the offender’s mental condition has made and will make his time in custody more onerous: De La Rosa [177].

Other matters

71. The penalty imposed for domestic violence offences must recognise the human dignity of the victims. It must also denounce the offending conduct as unacceptable behaviour.

72. I have had regard to the decision of Ngatamarki v R [2016] NSWCCA 155 referred to me by the offender. The decision in that case does not establish a sentencing pattern. Whilst there are some factual similarities, I have come to the conclusion, taking into account all of the matters I have identified, that a much sterner sentence is warranted in this case.

73. The Form 1 offences are further domestic violence offences that increase the need for specific deterrence, denunciation and retribution.

Penalty

74. The offender is convicted.

75. I have taken into account the Victim Impact Statement prepared by Ms Collins and read out by her in Court. The offences have destabilised the lives of Ms Collins and her daughter. They understandably feel unsafe in their own home. Their autonomy and confidence have been disrupted. Ms Collins continues to suffer the physical impacts of the attack, including a mild deformity of her facial appearance. Ms Collins and her daughter continue to suffer psychological symptoms and emotional distress as a consequence of the offender’s conduct. Ms Collins presented as a brave, intelligent and articulate young woman with much to contribute to society including the upbringing of her daughter. I hope that she can recover from the impacts of the offences to live up to her full potential.

76. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

77. I make a finding of special circumstances. This is the offender’s first time in custody and he has significant addiction and mental health issues that warrant a longer period of supervision on parole.

78. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Count 1 – taking into account the matters on the Form 1 – 7 years with a non-parole period of 4 years and 6 months;

• Count 2 – 18 months.

79. I impose an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 5 years to date from 26 January 2022. The non-parole period will expire on 25 January 2027 and the head sentence will expire on 25 July 2029.

80. The offender will be eligible to be released on parole on 25 January 2027.

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Decision last updated: 04 August 2023