R v Tuifua - [2021] ACTSC 298

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tuifua
Citation:	[2021] ACTSC 298
Hearing Dates:	19 November 2021
DecisionDate:	19 November 2021
Before:	Elkaim ACJ
Decision:	See [70]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – murder – assault occasioning grievous bodily harm – assault occasioning actual bodily harm – offence in custody
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 64, 72
Cases Cited:	R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) R v Newby [2021] ACTSC 110 R v O’Donnell [2009] NSWSC 42
Parties:	The Queen ( Crown) Frederick Elijah Mercy Tuifua ( Offender)
Representation:	Counsel A Williamson ( Crown) B Walker SC and A Karim ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Zahr Partners ( Offender)
File Number:	SCC 103 of 2021

ELKAIM ACJ:

On 23 April 2021 the offender pleaded guilty to the following two charges:

(a) Murder. The maximum penalty is life imprisonment.

(b) Intentionally causing grievous bodily harm. The maximum penalty is imprisonment for 20 years.

In addition, at the commencement of the hearing today, the offender pleaded guilty to a charge of assault occasioning actual bodily harm. This offence occurred while the offender has been in custody, bringing into play ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT). The maximum penalty for this offence is five years imprisonment.

The plea of guilty to the murder charge was made on the basis that the murder was committed by way of reckless indifference.

The facts are set out in detail in the Agreed Statement of Facts. The following is a summary:

The victim of the murder charge is Mr Pitasoni Ulavalu. I will refer to him as the deceased. The victim of the assault charge is Mr Zachary Robb.

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.

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.

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.

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Tuifua

Details

AGLC: R v Tuifua [2021] ACTSC 298
Case: [2021] ACTSC 298
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted Frederick Elijah Mercy Tuifua for multiple charges, including murder, intentionally causing grievous bodily harm, and assault occasioning actual bodily harm. The court had to determine the appropriate sentence for the offender, considering the nature and severity of the crimes, the circumstances surrounding the offences, and the offender's background and prospects for rehabilitation.

The legal issues the court needed to address were the objective seriousness of the crimes, the offender's level of remorse and culpability, and the appropriate sentence for each offence, including the impact of the offender's guilty plea and the need for deterrence and rehabilitation. The court also had to consider the interplay between the various charges and the appropriate non-parole period to ensure that the overall sentence was just and proportionate.

The court found the murder charge to be of mid-range objective seriousness, taking into account the deceased's lack of weapons, the offender's intent to use the knife, and the public's exposure to the incident. The court also assessed the knife attack on Mr Robb as falling towards the lower end of the spectrum of grievous bodily harm. The offender's background, prospects for rehabilitation, and genuine remorse were considered in mitigation. The court decided on an 18-year sentence for the murder charge, reduced to 15 years and 10 months with a 20% discount for the guilty plea. For the grievous bodily harm charge, the court imposed a 3-year sentence, reduced to 2 years and 5 months with a concurrent one-year accumulation. Lastly, for the assault occasioning actual bodily harm charge, the court imposed a 15-month sentence, reduced to 12 months following the plea of guilty.

The court's final orders were as follows:

1. For the offence of assault occasioning actual bodily harm, the offender is sentenced to 12 months imprisonment to commence on 5 August 2020 and end on 4 August 2021.
2. For the offence of murder, the offender is sentenced to imprisonment for 15 years and 10 months to commence on 5 August 2021 and end on 4 August 2039.
3. For the offence of intentionally causing grievous bodily harm, the offender is sentenced to 2 years and 5 months' imprisonment to commence on 5 March 2038 and end on 4 August 2040.
4. The total period of imprisonment is 20 years, commencing on 5 August 2020 and ending on 4 August 2040.
5. The non-parole period is set at 10 years, commencing on 5 August 2021 and ending on 4 August 2031.

Orders