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

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

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

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

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

Approach to Sentencing

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] NSWDC 294
Decision Date: 28 July 2023

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the matter of R v Tubakibau was heard and determined. The defendant was charged with one count of causing grievous bodily harm with intent and one count of common assault. The charges arose from an incident where the defendant severely injured his partner, leading to significant physical harm. The court was tasked with determining the appropriate sentence for the defendant following his guilty plea to both charges.

The legal issues before the court included the appropriate weight to be given to the defendant's guilty plea and the severity of the offences committed. The court considered the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999, including the need for punishment, deterrence, and rehabilitation. The court also examined the impact of the offences on the victim and the defendant's background, including his history of domestic violence.

The court determined that the offences were serious, particularly due to the intent behind the grievous bodily harm charge and the ongoing pattern of domestic violence. However, the court acknowledged the defendant's guilty plea and his otherwise clean criminal record. After weighing these factors, the court imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years. The court also noted the defendant's eligibility for parole after serving two-thirds of the sentence.

The final orders of the court were that the defendant is convicted and entitled to a 10% discount for his guilty plea. The aggregate sentence was set at 7 years and 6 months with a non-parole period of 5 years, to be served from 26 January 2022. The non-parole period will expire on 25 January 2027, with the full sentence expiring on 25 July 2029. The defendant will be eligible for release on parole on 25 January 2027.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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