R v Tuifua
[2023] ACTCA 6
•15 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Tuifua |
Citation: | [2023] ACTCA 6 |
Hearing Date: | 8 November 2022 |
DecisionDate: | 15 February 2023 |
Before: | McCallum CJ, Mossop and Bromwich JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – Crown appeal against sentence for murder and intentionally inflicting grievous bodily harm – offences committed in the context of a violent altercation at a nightclub – where plea of guilty entered for two charges – where the respondent was sentenced to a term of imprisonment of 20 years, with a non-parole period of 10 years – whether the sentencing judge erred in giving undue weight to certain considerations – whether the head sentence and non-parole period were manifestly inadequate |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 118(2) Crimes (Sentencing) Act 2005 (ACT) s 64(2)(e), 65 |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Bugmy v The Queen (1990) 169 CLR 525 Tracey v The Queen [2020] ACTCA 51 |
Parties: | The Queen ( Appellant) Frederick Elijah Mercy Tuifua ( Respondent) |
Representation: | Counsel S Drumgold SC & B Morrisroe ( Appellant) B Walker SC & A Djemal ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Fahmy Lawyers ( Respondent) | |
File Number: | ACTCA 62 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Acting Chief Justice Elkaim Date of Decision: 19 November 2021 Case Title: R v Tuifua Citation: [2021] ACTSC 298 Court File Number: SCC 103 of 2021 |
THE COURT:
This is a Crown appeal from sentences imposed on 19 November 2021 by a judge of the Court (sentencing judge) upon the respondent, Mr Frederick Elijah Mercy Tuifua. Mr Tuifua, pleaded guilty in the Magistrates Court to two charges:
(a) murdering Mr Pitasoni Ulavalu, upon the basis of reckless indifference to human life; and
(b) intentionally inflicting grievous bodily harm on Mr Zachary Robb.
The maximum penalty for murder is life imprisonment. The maximum penalty for intentionally inflicting grievous bodily harm is 20 years imprisonment.
Those two offences took place only seconds apart in a nightclub in Canberra in the early hours of Sunday, 19 July 2020. Both were committed by Mr Tuifua using a knife, with a single stab wound each time. At that time, Mr Tuifua was 26 years of age. He is now 28 years of age.
Mr Tuifua also pleaded guilty at the sentence hearing to a charge of joint commission assault occasioning actual bodily harm, committed while he was remanded in custody on the murder and grievous bodily harm charges, with his individual role in that assault being that of a lesser participant. The maximum penalty for that offence is imprisonment for five years. There is no appeal from that sentence.
The sentence hearing for all three offences took an entire day, with Mr Tuifua giving affidavit and oral evidence and being cross-examined. Mr Tuifua expressed remorse, and made a limited attempt at an explanation, but no motive emerged from his evidence. It would seem that his intoxication provides part of the reason for what he did, although no excuse.
The agreed facts, supplementary evidence, and findings as to objective seriousness are reproduced at some length below, as are other key features of the remarks on sentence.
The sentences imposed by his Honour were as follows:
(a) a fixed term of 12 months for the joint commission assault occasioning actual bodily harm, imposed first in time from the date that Mr Tuifua was arrested and taken into custody on 5 August 2020, because of the prohibition on a non-parole period being imposed for an offence committed in custody: see s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) and s 118(2) of the Crimes (Sentence Administration) Act 2005 (ACT);
(b) 18 years for murder, reduced from 22 years and 6 months for the guilty plea, imposed after the completion of the sentence for the offence of joint commission assault occasioning actual bodily harm;
(c) 2 years and 5 months for intentionally inflicting grievous bodily harm, reduced from 3 years for the guilty plea, and accumulated upon the murder sentence by 12 months;
(d) from the above, a total head sentence of 20 years, of which 19 years is attributable to the charges of murder and intentionally inflicting grievous bodily harm and commencing after the 12-month sentence for the joint commission assault occasioning actual bodily harm; and
(e) a single non-parole period of 10 years for the charges of murder and intentionally inflicting grievous bodily harm, also commencing after the 12‑month sentence for the joint commission assault occasioning actual bodily harm, producing an overall minimum period of imprisonment of 11 years.
Appeal grounds and principles
The Crown notice of appeal dated and filed 4 February 2022 is confined to the charges of murder and intentionally inflicting grievous bodily harm, with the following grounds pleaded at [4]:
The ground of the appeal is that the sentences imposed are manifestly inadequate.
Particulars:
i. The sentence imposed in respect of the charge CC2020/9386, murder, was manifestly inadequate;
ii. The sentence imposed in respect of the charge CC2021/455, intentionally inflicting grievous bodily harm, was manifestly inadequate;
iii. The total head sentence imposed was manifestly inadequate; and
iv. The non-parole period imposed was manifestly inadequate as to its length and as a proportion of the head sentence.
The principles applicable to Crown sentence appeals are not in dispute and may be briefly stated:
(a) Criminal sentencing is discretionary and the principles in House v The King (1936) 55 CLR 499 at 504-505 apply. It is not enough that an appeal court would have imposed a different sentence. Establishing error is indispensable.
(b) Crown appeals against sentence are distinguished from offender sentence appeals in that their primary purpose is not directed to the correction of error, but rather to laying down principles for the guidance of sentencing judges: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1] per French CJ, Crennan and Kiefel JJ.
(c) The ultimate questions for determination by this Court are whether appealable error has been demonstrated, and if so, whether the Crown has established a good reason against exercising the residual discretion not to intervene: CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 at [56].
By way of further elaboration, this Court in Tracey v The Queen [2020] ACTCA 51 at [37] (Murrell CJ, Burns and Abraham JJ) observed in relation to a manifest excess appeal, which is equally applicable to a Crown manifest inadequacy appeal:
The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]) (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76].
An appeal such as this, confined to manifest inadequacy (or manifest excess), without any ground asserting specific error, has particular characteristics, stated by the High Court as follows:
(a) Hayne J, in dissent on the result, but not on the explanation of the applicable principles, observed in AB v The Queen [1999] HCA 46; 198 CLR 111 at [130]:
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be resentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy [or too light] and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
(Emphasis added.)
(b) In Hili v The Queen [2010] HCA 45; 242 CLR 520, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed at [59]:
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
(Footnotes omitted.)
As a practical matter, in most pure manifest inadequacy or manifest excess cases, it will be difficult to avoid relying upon comparative sentences in order to demonstrate that the sentence imposed “lies outside the permissible range of dispositions” or is “so far outside the range of sentences available that there must have been error”. That does not exclude cases in which the sentence is so obviously “upon the facts … unreasonable or plainly unjust” (House v The King at 505) so as to support the necessary inference of error, such that comparative sentences may add little or nothing to that adverse conclusion. However, this is not that sort of case because a substantial sentence was imposed, and the Crown complaint is that, upon a searching critique of the sentencing remarks, without pleading and establishing any specific error, it is said to be manifestly less than it should have been.
The key facts and findings
The sentencing judge expressly referred to and thereby adopted the facts as set out in detail in the agreed statement of facts. In the context of what follows, those facts are to be read with his Honour’s reasons as setting the factual substratum for what follows, remembering that in the conventional way, the sentence reasons were given orally on the day of the sentence hearing, and later revised to a limited degree for publication. That is an approach to be generally encouraged. His Honour then succinctly summarised the key facts for the two sentences under appeal by reference to the agreed facts, and the additional evidence adduced in both written and oral form. His Honour’s findings as to the objective seriousness of the offending, largely adopting the Crown submissions in that regard, were as follows:
[6]The two victims were members of an outlaw motorcycle gang. The deceased was the Commander of the Canberra Comanchero gang. On 18 July 2020 the deceased, Mr Robb and other members of the gang went to a nightclub in the Canberra CBD called Kokomo’s.
[7]Shortly after they arrived, the offender was in a Toyota motor vehicle which parked outside the nightclub. The statement of facts then reveals a somewhat confused series of events which culminated in the offender entering the nightclub with a knife in his right hand. This was at about midnight.
[8]A Mr Shane Houghton confronted the offender and threw a barstool towards him. There was then a general melee in which assorted persons physically engaged with each other. The offender kept to the side of the participants. The deceased tried to separate them. Mr Robb was one of the participants.
[9]The offender then became involved. With the deceased’s back towards him, the offender touched him with his left hand. He then raised the knife above shoulder height and stabbed the deceased just below his right ear. The blow was forceful as can be seen from the photograph of the wound contained in Exhibit A.
[10] The deceased bled profusely and stumbled away.
[11]The fighting continued. Mr Robb was held by a number of persons who assaulted him. The offender, again approaching from behind, stabbed Mr Robb in the left upper thigh. Other persons continued the assault on Mr Robb. His head was attacked. Mr Robb fought back and at one stage launched a chair over the head of one of the assailants.
[12]Shortly after midnight the offender left the club holding the knife. The deceased staggered behind him, still bleeding. The door closed on the deceased and struck his head. He managed to exit the club and crossed the road before falling to the ground.
[13]The police arrived shortly afterwards. They saw the deceased lying in the gutter on Genge Street. An ambulance arrived but paramedics were unable to save the deceased. His death was witnessed by a number of patrons who had not been involved in the events that had just transpired. As will be seen below one of those persons was significantly affected by what she saw.
[14]The offender fled from the scene. He threw the knife into a stormwater drain. He was arrested on 5 August 2020 and has remained in custody since that date.
[15]The background to the events is a little difficult to discern. It does not seem to have arisen from any rivalry between competing gangs. It seems to have arisen from a missing bag belonging to one of the offender’s colleagues. It is a measure of the incomprehensibility of the events that such a minor matter should have such severe consequences.
[16]The offender has suggested that he was “fearful that night” and to an extent where that fear was for his life. He suggests that the fatal stabbing was not intentional; rather the knife was being carried for self-defence and was usually with him in case circumstances required such a defence.
[17]The CCTV does not support the offender’s version. The knife was being held for some time before the stabbing, it was held by him before he went into the club and before there was a disturbance in the club. The suggestion that he was reacting to a chair being thrown at him is also defeated by the CCTV footage. I have little doubt that the offender was an aggressor that night and not a person acting to minimise harm to himself.
[18]In fairness to the offender, there was no suggestion in the submissions made today that self defence played any part in the crime. I also accept the submission that the offending was “bereft of hatched plans and fostered hostilities”.
[19]It is necessary for me to assess the objective seriousness of the offending. The Crown has suggested that the facts giving rise to the murder charge fall “at about the mid-range on the spectrum of objective seriousness for such matters”. I think the Crown’s attitude bespeaks a degree of fairness. It would have been very easy for a submission to be made that the objective seriousness was well above medium.
[20]I agree with the Crown’s assessment. In reaching my independent view I have, like the Crown, taken into account that the deceased was not armed and that the offender seemed intent on using the knife by having it in his hand for some time before the stabbing.
[21]It is also relevant to the assessment that the public was exposed to the horrors of seeing a man dying in the gutter of a public street. There is also, of course, the effect on the deceased’s family and persons close to him.
[22]The offender was drunk when he committed the crimes. That does not lessen his culpability. He chose to be drunk and if his actions were influenced by his intoxication, that was a product of his own doing.
The sentencing judge summarised the two victim impact statements that were before his Honour in relation to the murder, each of which was also read out in open court, reproducing key passages from each statement:
(a) by Mr Ulavalu's partner, who was 14 weeks pregnant at the time of his murder, describing his substantial virtues, attesting to the real and significant impact of the death of Mr Ulavalu upon her and upon his family, describing the ongoing impact upon her, including raising their child as a single parent and asking on behalf of the family for the maximum penalty to be imposed; and
(b) by an innocent bystander who witnessed him being stabbed, attesting to the trauma she had suffered and continued to suffer.
The sentencing judge:
(a) agreed with the Crown assessment that the grievous bodily harm offence fell towards the lower end of the spectrum of injuries for such offending; and
(b) summarised the circumstances of the joint commission assault occasioning actual bodily harm offence, which is not challenged and does not need to be considered further, beyond observing that it involved a defenceless prisoner being assaulted by other inmates, with Mr Tuifua's contribution being two kicks towards the victim, only one of which made contact, but still being part of the mob.
The sentencing judge detailed Mr Tuifua's background and thereby subjective circumstances, including his upbringing by a somewhat disciplinarian father, a potted education and employment history, personal tragedies involving the death of an uncle and a friend, substantial alcohol consumption and some illegal drug use in the past. He had some psychological problems, in part arising out of being seriously assaulted twice. But his Honour did not accept the evidence of a psychologist on this topic as providing any cogent explanation for Mr Tuifua's offending conduct, noting also that he had no relevant prior convictions.
The sentencing judge regarded the guilty pleas at a comparatively early stage as having significant utilitarian value, giving a discount of 20 per cent, reduced from 25 per cent because of the strength of the Crown case, arising from Mr Tuifua being readily identifiable and his actions being apparent on CCTV footage. Some limited weight was also given to a letter of apology sent via the Crown to the family of Mr Ulavalu.
There were affidavits and statements before the sentencing judge about Mr Tuifua's attitude towards his offending and his character, key among them being summarised and reproduced, with his Honour's conclusions being as follows:
[50]The offender’s statements of remorse are echoed in the affidavit of his wife, Mrs Katherine Tuifua:
My husband has taken full ownership of his actions, from the very first time he told me about the incident. He has always expressed his deep remorse, his confusion for his own actions, and he has been exhaustively apologetic. There was not a single ounce of pride in my husband’s account of what happened on that fatal night. He cried uncontrollably to me and I couldn’t calm either of us down.
My husband lives with the guilt of taking a life and will live with this guilt for the rest of his life. His actions on that night will affect him in his everyday life, and the lives of the family of the victim, and especially in his own family where his daughter and I will be separated from him for many years. He will live with the shame and humiliation of his daughter one day learning about it.
[51]There is a letter from Her Royal Highness Princess Salote Mafile’o Pilolevu Tuita. She provides a character reference based on her knowledge of the offender in particular through his family. She says that she “was stunned because the person being described was not the person I had come to know from a young child to a young man”. She continues:
Through my discussions with Mishka (the offender’s mother) I have learnt all Frederick’s shame and remorse concerning the impact of his actions upon the victim and his family. I have observed Frederick’s family agonise alongside him during this difficult time. Knowing the true character of this young man, it appeared to me immediately that his behaviour on this fateful night was an aberration that will not be repeated. It is a tragedy for all parties.
…
[55]There are a number of references from family and friends. They generally express the out of character nature of the offending and relate the remorse felt by the offender. I do not intend to quote from all of them but I do think the reference from his mother is important. She expresses her sorrow at what has happened to her son and in particular about what her son has done to others. She says:
My heart also cries out for the mother who lost her son, the wife that lost her husband, and the children that lost their father.
The actions on 19 July 2020 does not define my son as that is not him at all, and I can assure Your Honour he would never make such an error in judgment again. I plead with every being of my heart and life, that Your Honour shows mercy and justice for Frederick so that his own life is not completely lost from an action that is so out of character, so apart from the person he was for 26 years, and that the error of judgment on the eve of 19 July 2020 does not completely erase the law-abiding and productive young life Frederick led, and thus be considered in warranting of some mercy for the rest of Frederick’s life, please.
[56]I think three matters arise consistently through the references; the offender’s actions were out of character, he has shown genuine remorse and he has good prospects of leading a lawful life after prison. I accept each of these sentiments as accurate factual statements.
As to comparative sentences, the sentencing judge observed:
[57]I have been provided with a list of comparative cases by each side. Some of the cases overlap. The cases reflect the very wide range of sentences that have been imposed for murder. They highlight that every case is different, every victim is different and every offender has his or her own attributes.
[58]The offender suggested that R v Newby [2021] ACTSC 110 and R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) might provide some guidance. Both parties pointed out distinguishing features and the Crown observed that Newby is awaiting an appeal based on manifest inadequacy.
[59]I have found R v O’Donnell [2009] NSWSC 42 to be of some assistance. In this matter Rothman J, in the New South Wales Supreme Court, sentenced a 22-year-old man to a head sentence of 22 years with a non-parole period of 16.5 years. The offender in that case had a troubled childhood, a history of mental illness and an addiction to cannabis. The latter two conditions were not operating when he stabbed another man on a dance floor. Rothman J assessed the offence as being of about mid-range objective seriousness. His Honour had some doubts about the offender’s level of remorse. His Honour made this universal observation, at [5]:
The purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes, such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of those factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances, viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions.
The sentencing judge then provided the following assessment of what had taken place, and explained the basis for the sentences to be imposed:
[60]In this case a man has lost his life. That he was the leader of an outlaw motorcycle gang is not relevant. As his partner’s victim statement indicates he was, to her and their family, a decent person.
[61]The offender was also a decent person and has the capacity to return to society and contribute to society. But he must first be punished for his actions. He and others must know that resorting to violence, even simply carrying a knife, are not acceptable modes of behaviour. Every person that carries a knife, or some other weapon, must know that it is an implement capable of causing great harm and fatal harm. As Rothman J said in O’Donnell:
A knife is not a fashion accessory, and the courts need to make that clear to all.
[62]The offender was not a person who was a member of a gang likely to be attacked by a rival gang. There was no need for him to be carrying a knife. There was certainly no need for him to use it.
[63]The assault charge is obviously a good deal less serious and arose from the same series of events. There must be a degree of concurrency, but also some accumulation to recognise the harm done to a separate victim and the separate wrongfulness of the offender’s actions.
[64]I think the appropriate sentence on the murder charge is 22.5 years. After the reduction of 20% the result is 18 years.
[65]On the assault causing grievous bodily harm charge I think the appropriate sentence is imprisonment for 3 years. After the same discount the result is 2 years and 5 months. I think there should be an accumulation of one year.
[66]Turning to the assault occasioning actual bodily harm charge, I accept the Crown’s suggestion as to the appropriate structure for the sentencing to cater for the above mentioned sections of the Crimes (Sentencing) Act 2005 (ACT). It is important for me to avoid any injustice through totality arising from, in particular, s 72. In setting the sentence I have taken into account that the non-parole period for the other offences cannot commence until the sentence has been completed.
[67]I think the sentence for this offence should be 15 months, but reduced to 12 months following the plea of guilty.
[68]Taking into account the relative youth of the offender and his background I think he has good prospects of rehabilitation which should be encouraged through the non-parole period. But for the provisions of s 72 I would have set a longer non-parole period. However to take into account that the non-parole period only begins one year after the commencement of imprisonment, I think 10 years is appropriate.
[69]The offender has been in custody since 5 August 2020. The first sentence will commence on that date.
The sentence reasons are not very lengthy. They did not need to be, especially given the express adoption of the agreed statement of facts. They are clear and concise. They communicate well what has taken place, upon the basis of the agreed facts and evidence that was before sentencing judge. No reader is left in the dark as to what was important to his Honour in deciding upon the final result. Any criticism of his Honour must go well beyond disagreeing with the assessments made and conclusions reached. There must be error established in line with the High Court authority cited above.
The Crown faced a steep hurdle in demonstrating error by the sentencing judge in light of the care and clarity in his Honour's reasons. It was not enough that a heavier sentence could have been imposed, or even should have been imposed, by reason of a different assessment and evaluation taking place.
General observations about criminal sentencing and parole
Before turning to the case advanced by the Crown, to be assessed in light of the submissions in response by Mr Tuifua and a clear-eyed assessment of the sentencing judge's reasons in light of the material before his Honour, this case calls for some important preliminary observations to be made.
This is an undoubtedly tragic set of circumstances as detailed above. The offences were brutal and inexplicable, or at least not explained on the material that was before the sentencing judge. On the limited available evidence, despite the disturbing nature of the attack shown on the CCTV, the offences were not shown to be pre-planned, targeted or reflective of an inherently or irredeemably evil state of mind. The evidence before his Honour made it clear that the murder has devastated and ruined the lives of the family and friends of the deceased, Mr Ulavalu, especially his wife and his child born afterwards. It must also have had a major impact on Mr Robb.
Mr Ulavalu's wife sought the maximum sentence, which was not surprising given her suffering and anguish. Her genuine wish in this regard is completely understandable and anything less was always going to be a bitter disappointment to her and also to his family and friends. But the maximum penalty provided for was never going to be the outcome given:
(a) the guilty plea well before any trial;
(b) the lack of any predetermined or malign motive or any other aggravating explanation being established for what had happened on top of the obvious seriousness of using a knife in a public place for no apparent reason; and
(c) Mr Tuifua's subjective circumstances and his apparent strong prospects of rehabilitation.
The worst outcome has to be reserved for the worst category of cases, with motivation often being an important consideration. That can involve such things as planning with intention in advance to kill or maim, hatred, greed, revenge, cruelty, depravity, or other signs of high moral culpability. It has never been suggested, much less proven, that this was such a case, despite the devastating effects of what happened.
Committing these offences has also devastated and ruined the life Mr Tuifua, his wife, his daughter, his parents and his extended family. Mr Tuifua's wife and mother both sought mercy, describing in evocative terms his personal anguish expressed to them, how out of character his offending was, and his very good prospects of rehabilitation. There was no real attempt by them to minimise what he had done. Their account was not challenged, most likely because there was no basis for doing so.
Mr Tuifua himself sought to explain what he had done in a limited way by reference to his state of mind of himself fearing harm and the circumstances of that night in a way that partly conflicted with the objective fact of having a knife with him in the first place, with an evident contemplation of perhaps using it, while Mr Ulavalu was unarmed. His explanation also conflicted with the objective view of the events leading to the two stabbings recorded by CCTV. But there is no suggestion put to him that he was lying. The sentencing judge was left with a somewhat distorted and perhaps self-serving perspective of what had taken place. None of the sorts of adverse motivations identified above was even suggested as being held by him. But the sentencing judge was left with no real explanation as to why Mr Tuifua had behaved as he did, given that his Honour did not accept even Mr Tuifua's limited attempt at this explanation of sorts.
The sentencing judge was faced with a difficult decision. His Honour could not focus only on the crimes and the need for retribution, especially for the murder, although that was a vitally important part of the process. His Honour could not ignore the other considerations. His Honour was required to, and did, conduct a careful and thorough balancing of the competing considerations of punishment in criminal sentencing, namely retribution, deterrence and rehabilitation. An overarching principle of sentencing is that the sentence be proportionate to the offending conduct, taken as a whole and in context. In this case, this was considered in circumstances where there was no issue of any relevant prior offending.
Any substantial sentence will ordinarily address the objective of deterrence, both general and specific, especially in the absence of any case advanced for something out of the ordinary in that regard. The real conflict for the sentencing judge to balance and resolve was the competing objectives of retribution and rehabilitation in the context of the seriousness of the offences, remembering that there is no single correct sentence: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [46]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27].
The concept of rehabilitation, historically referred to as reform, does not always receive much in the way of detailed consideration in the authorities, perhaps because it very much turns on the individual facts and circumstances of the case at hand. It is directed to the community interest in preventing repeat offending, given that for nearly all imprisonment offences, the offender must eventually be released and the community potentially be exposed to the dangers of offenders who may not have not changed their ways or otherwise properly or adequately addressed what drove them to offend in the first place. As his Honour correctly found, and the Crown does not challenge, Mr Tuifua advanced a compelling case for him likely having very good prospects of rehabilitation, especially given his unchallenged and genuine remorse. Of course, that is a prediction, which may or may not continue to hold good as Mr Tuifua serves the non-parole component of his prison sentence. The converse is that a prolonged and unduly harsh sentence could work against the prospects of such rehabilitative success, increasing rather than decreasing the risk to the community.
The concept of retribution has evolved over the centuries. At a time when there was little in the way of law enforcement, the punishment exceeded the crime so as to terrorise the populace from offending, with the death penalty applying for all manner of offences, and capable of being inflicted in barbarous ways to increase its terrorising effect. Then retribution evolved to the punishment equalling the crime, a progressive move at the time although not generally viewed in that way now. It has as its origin a biblical and equivalent connotation: the punishment equals the crime; an eye for an eye, originally quite literally. See the discussion of this aspect of criminal law sentencing in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 299 IR 404 at [41]-[44] per Allsop CJ, White and Wigney JJ.
A longstanding part of criminal sentencing law is that while retribution still needs to reflect, so far as is reasonably possible, community expectations of punishment in the sense of retribution, denunciation and deterrence, and to maintain public confidence in the administration of justice, the end result must also take into account the community interest in rehabilitation, even if advancing that objective is not necessarily an overtly expressed public expectation. Mr Tuifua must be released from prison at some stage, either at the end of his overall head sentence, or sooner, depending upon whether his apparent promise of successful rehabilitation proves to be a sound prediction. It is important, to the maximum extent possible, that he is a reformed person when that happens, so that he will not offend again and harm those around him. Rehabilitation is not just vitally important for him and his family, but also for the wider community.
It needs to be remembered that the non-parole period is not the sentence per se, but rather the minimum component of the sentence that a court considers must be served in accordance with the demands of justice. It is not just the minimum time to enable the parole decision-maker, the Sentence Administration Board, to form a proper opinion as to an offender's prospects of rehabilitation. As the High Court pointed out in Power v The Queen (1974) 131 CLR 623, per Barwick CJ, Menzies, Stephen and Mason JJ at 627-628, in relation to a parole provision not materially different to the present s 65 of the Crimes (Sentencing) Act 2005 (ACT), the requirement to set a non-parole period “does not convert a sentence of imprisonment from a punishment into an opportunity for rehabilitation” and it is not correct to regard only the non-parole period as retributive (and, it may be added, also directed as relevant to deterrence, denunciation and protection of the public), and the balance as directed only to rehabilitation. A non-parole period is the minimum required to meet all of the objectives of sentencing that the offence(s) require, and in a given case a longer period, even a much longer period, than the non-parole period may be required to be served, especially when, as in this case, protection of the public from a future repeated unexplained act of extreme violence will be an important consideration.
It has long been accepted that it is difficult, if not impossible, to make a prediction as to what the actual minimum time to be served will need to be at the time of sentence, especially when a lengthy non-parole period is imposed: see Bugmy v The Queen (1990) 169 CLR 525 per Dawson, Toohey and Gaudron at 536; Hili per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [40]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [57]. In this case, the Sentence Administration Board will make the necessary assessment closer to the expiry of Mr Tuifua's non-parole period.
The competing arguments
The Crown case on appeal focuses on the objective seriousness of the offending, the purposes of sentencing and the relevance of remorse. It is a criticism of what is said to be inadequate detail appearing in the summary of the agreed facts adopted by the sentencing judge. That is relied upon to support an inference of otherwise undisclosed error. The Crown written submissions were not substantially developed orally. They did not need to be, except perhaps in relation to demonstrating that the sentences were in some way out of kilter.
The Crown contends that the overt conclusions reached by the sentencing judge as to the seriousness of the offending were not “strictly erroneous”, but were said to be “cursory” and that a more “fulsome analysis” of the facts and circumstances of the offending would have led to “a determination of a sentence that would appropriately reflect the seriousness of the offending” and Mr Tuifua's moral culpability. That is then divided into a further three topics for both appealed sentences as follows:
(a) Use of a weapon, the victims’ vulnerability and nature of the injuries inflicted;
(b) Degree of premeditation and the relevance of motive; and
(c) Location of offending and impact on victims and witnesses.
Each of those features are then expanded upon by:
(a) repeating the details of the two offences in some detail, referring in the case of the murder to the use of a knife as an aggravating feature, the degree of violence and the extent of the injuries, the extent of the suffering, the vulnerability of Mr Ulavalu, the attack being in company, and to the extent of the injury and its life-threatening character in the case of Mr Robb;
(b) characterising the offending as not being spontaneous, largely because Mr Tuifua attended the nightclub with the knife, which he conceded was originally selected due its capacity to harm and had signalled to a staff member not to say anything when he produced it, and the lack of any cogent explanation for why the attacks had taken place;
(c) pointing to the offences taking place in a crowded public place, exposing members of the public to significant violence and bloodshed, as evidenced by the bystander victim evidence, plus the impact on Mr Ulavalu's then pregnant partner.
There is nothing to indicate that the sentencing judge was otherwise than fully aware of all of those features of the offending.
The Crown submits that by reason of particular additional details not being set out in the sentencing judge's reasons, the individual sentences do not adequately reflect the objective seriousness of the offending when considered in the context of the maximum penalties. The complaint made is that there had to be, and were not, sufficiently clear and detailed reasons for the conclusion reached, so that each party can understand the basis for the decision, and that a mere recital of the facts and submissions of the parties will not suffice. It is said that a proper assessment of the gravity of the offending “must” involve a global consideration of “all” the facts and circumstances, citing Nash v The Queen [2013] VSCA 172; 40 VR 134 as an example of a case in which aspects of offending in another case were inadequate. These propositions are not accompanied by any explanation as to why the sentencing reasons failed to meet those standards, in circumstances in which it is not apparent that such defects are present at all, let alone manifest as the Crown asserts is the case.
The Crown then asserts that the degree of concurrency between the sentences for murder and intentionally inflicting grievous bodily harm resulted in a head sentence that was unreasonable and plainly unjust, and that the degree of concurrency failed to ensure public confidence in the administration of criminal justice. However, the Crown does not explain why those conclusions had to be reached by this Court. There is nothing inherently or obviously wrong with the exercise of discretion as to partial concurrency and partial accumulation, especially given the very close temporal relationship between the two offences. That was always going to be an important factor in assessing the degree of overlap between those two sentences.
The Crown asserts that the sentencing judge failed to give effect to the purposes of sentencing, but again the submissions are in the form of statements of unremarkable principles as to the need for there to be adequate punishment, deterrence, denunciation, recognition of harm and protection of the community, accompanied by a stark critical conclusion to the effect that not enough weight was given to the seriousness of the offending, and too much weight was given to the lack of a criminal history, referring not to his Honour's reasons, but rather to the submissions made by Mr Tuifua's counsel. The Crown submits that too much weight was placed on Mr Tuifua's prospects of rehabilitation and that this was erroneous having regard to the nature and gravity of the offending, such that the leniency reflected undue weight being given to this consideration. The Crown submits that due to the nature of the violence, general deterrence should have carried more weight over Mr Tuifua's prospects of rehabilitation. These were all submissions directed to the discretionary weight given to the competing considerations.
In a conclusory way, the Crown asserts that there was a failure to give effect to the primacy of general deterrence, denunciation and punishment. But beyond assertion, no real attempt is made to make good that submission.
On the question of remorse, the Crown again refers to and relies upon the submissions made on behalf of Mr Tuifua and the material thereby relied upon, rather than the sentencing judge's careful consideration of this topic. Much is made of Mr Tuifua's conduct at the time and in the aftermath, especially in terms of his failure to assist either victim, instead, fleeing the nightclub after the two stabbings and being arrested 17 days later before he had given effect to a plan to hand himself in, without acknowledging that this was all before his Honour and not demonstrated to have been overlooked except in the sense that not every minute detail is reproduced from the adopted agreed facts. The Crown effectively submits that the absence of the selective granular additional detail in the reasons of the kind set out in the Crown submissions supports an inference that his Honour erred in placing too much weight on remorse. Yet no error is even asserted, much less identified, in the assessment of remorse that was contained in the reasons.
In relation to the non-parole period, reference is made to R v Newby [2022] ACTCA 20, a case in which despite there being a finding of no remorse, and a very late guilty plea not long before trial, the non-parole period was 50 per cent of the head sentence before being increased following a Crown appeal. However, Newby was a very different case to the present, both in terms of the objective seriousness of a murder offence committed for the purpose of controlling a former partner, and in terms of the lack of any real basis for substantial mitigation, including no remorse at all. In this case, the sentencing judge gave consideration to a higher non-parole period but expressly decided not to do so because of the effect of the fixed sentence for the later offence committed in custody. Plainly, his Honour gave careful consideration to the question of the ratio between the overall head sentence for the two impugned sentences and the non-parole period, in the context of the sentence for the non-impugned sentence for the assault in custody. In a case of substantial remorse and apparent good prospects of rehabilitation, it is unremarkable that the ratio of the non-parole period to the overall head sentence was towards to bottom the general range, but not below it. As the authority discussed above makes clear, it is the minimum period to be served before the Sentencing Administration Board can even consider the grant of parole, but there is no certainty that this will take place at that time.
Mr Tuifua provides detailed appeal submissions to refute the Crown submissions, putting particular emphasis on the failure to refer to a single comparative sentence in aid of the asserted conclusion that the end result just had to be found to be wrong. It is not necessary to set out those submissions in any detail. In substance, in addition to addressing the relevant principles, they provide a blow-by-blow refutation of the Crown argument. This is done by, among other things, filling in details of the facts not referred to, noting the absence of any asserted overt error or proper basis to infer error, and pointing to the lack of any degree of departure from the general pattern of sentencing to indicate a departure from the available range of sentences able to be considered by the sentencing judge.
Mr Tuifua's submissions also detail the way in which the Crown submissions fail to establish error in the sentencing judge's assessment of objective seriousness, pointing to his Honour's express and more than sufficient references to:
(a) the use of a knife, victim vulnerability, and the nature of the injuries inflicted: reasons at [9]-[11], [20] and [61]-[62];
(b) the degree of premeditation and the relevance of motive: reasons at [17]-[18], [43], 47] and [49];
(c) the location of the offending and the impact on victims and witnesses: reasons at [21], [23], [60] and [63],
noting, correctly, that not every detail had to be spelt out, especially as there was a significant overlap between the circumstances of the two stabbing offences.
Mr Tuifua accurately characterises the Crown complaint about the treatment of remorse and rehabilitation as rising no higher than a complaint about weight given in the exercise of the sentencing judge's discretion, pointing in particular to his Honour's reproduction of the statement of principle by Rothman J in R v O'Donnnell, quoted by his Honour at [59] and reproduced above.
Mr Tuifua also correctly submits that the Crown criticism of the sentencing judge's conclusions about contrition and remorse should be rejected when regard is had to his Honour's capacity to observe the evidence he gave, the assessment of his conduct since the stabbings and the weight given to the guilty plea and its timing. As Mr Tuifua points out, his Honour was entitled to give substantial weight to his significant subjective case in support of the final sentences arrived at, which goes to the head sentence as well as the non-parole period.
The final part of Mr Tuifua’s submissions take the Court to a series of comparative cases, none of which are questioned or challenged by the Crown, in order to positively demonstrate that this sentence was not out of line with other sentences given so as to support an inference of error.
Consideration and conclusion
The central point of the Crown case on appeal is that the sentencing judge had in some way overlooked the key features of the offences and their circumstances because the reasons were not as granular in certain respects as the Crown contends that they should have been. However, properly considered, none of the points grapple with the fact his Honour's reasons were, expressly, a summary of the key features of the offences and the available mitigation, whilst not putting any part of them to one side. The highest that the Crown submissions rise is to point to additional things that could have been said, or said in more detail, higher sentences that could have been imposed, a higher non-parole period that could have been arrived at, and less weight that could have been given to the circumstances of remorse and rehabilitation.
At no point is any real attempt made by the Crown to grapple with the careful exercise that the sentencing judge went through in this most difficult of sentencing exercises. There is no proper basis for the submission made that including this additional granular detail would have added in substance, rather than form, to his Honour's reasons. Nor is it explained how or why the substance of every point of importance was not addressed or given the weight that his Honour considered was sufficient and appropriate.
There is simply no proper basis for concluding that the sentencing judge was otherwise than fully aware of all of the facts and circumstances of the offending set out in the evidence and other material before his Honour and the competing submissions as to key aspects of them. In the final result, the Crown argument does not rise higher than a complaint that the sentence was not heavy enough as a value judgment. The sentence was not, in all the circumstances, shown to be inadequate, let alone manifestly so.
The circumstances are undoubtedly troubling, especially as the lack of any cogent explanation for why Mr Tuifua behaved in this way must inevitably give rise to legitimate concerns that the promise of rehabilitation may prove illusory, and the safety of the community may remain as a barrier to release at the time of the expiry of the non-parole period. That, however, is a matter for the Sentencing Administration Board to address.
The Crown appeal must be dismissed.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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