R v Tuifua
[2021] ACTSC 110
•19 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Tuifua |
| Citation: | [2021] ACTSC 298 |
| Hearing Dates: | 19 November 2021 |
| Decision Date: | 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: |
1. 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. 2. 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.
3. The plea of guilty to the murder charge was made on the basis that the murder was committed by way of reckless indifference.
4. The facts are set out in detail in the Agreed Statement of Facts. The following is a summary:
5. 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.
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.
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.
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.
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.
23. I have heard two Victim Impact Statements. The first is from the deceased’s partner,
Ms Monique Eramo. She was 14 weeks pregnant with their child at the time of the offence. She describes him in this way:
Pitasoni deserves the upmost respect being remembered as the genuine person he was, what he stood for and what mattered to him the most. He was a humble and loving person who always looked after his family and friends. He was a person who would light up the room and his passing has touched many people. He was a father, a partner, a son, an uncle and a friend and never deserved to lose his life in such a way.
Pitasoni’s family is very close-knit and always relied on him for assistance through many
means. He was a person who always saw the good in people and always gave them a chance. He made a life for himself and his family, he provided all avenues of help; finding
them a job, providing accommodation and financial assistance … He had a heart of gold, a
pure love like no other and a genuine character who was always ready to lend a hand. He
reciprocated respect the same way he was given… He taught me many things but would
always stress to be kind, loving and respectful.
24. Ms Eramo goes on to describe her life without the deceased; bringing up a child single- handedly and the financial and mental burdens that have been imposed upon her. She
ends by asking me, on behalf of the family “that the maximum penalty for the crime in
which the defendant was convicted, be imposed”.25. I referred above to the innocent bystanders who witnessed the events, and in particular the death of the deceased. One of them was Ms Sophie Randall. She provided first aid to the deceased on that night. Even though she worked in a health profession she found it difficult to pursue her university studies because of an inability to focus and concentrate. She needed to see a doctor frequently in order to obtain a special dispensation in dealing with her university commitments. She needed counselling and then psychotherapy. She was diagnosed with an acute stress disorder as well as Post Traumatic Stress Disorder. She concludes in this way:
I would not wish that anyone else has had to suffer through things that are outside of their
control due to other people’s actions.
I also agree with the Crown’s assessment of the objective seriousness of the knife
attack on Mr Robb. This assessment was that the offending “falls towards the lower
end of the spectrum of injuries that constituted grievous bodily harm”.27. The events in the AMC were also shown on the CCTV. They depict a prisoner being
assaulted by, in reality, a gang of inmates. The offender’s part was small comprising of
two kicks against the victim, only one of which made contact. Nevertheless he was part of the mob and the offence was upon a victim who had very little chance of defending himself. Offences within a custodial setting assume, for that fact alone, a degree of seriousness.
28. The offender was born in Sydney in 1994. His parents were born in Tonga. They had
six children. According to the history given to a psychologist (Ms Cullen) the offender’s
parents fought a lot and his father drank too much.
29. The offender lived in Tonga for about five years from the age of eight. The relationship between his parents improved during this time. Nevertheless his father seems to have been something of a strict disciplinarian although on occasion the discipline was unexpected and apparently out of proportion to the underlying activity.
30. The offender found school in Tonga to be difficult and he struggled to make friends. When he was 14 he was sent to boarding school in Canberra. The offender left Canberra Grammar School during Year 12 and completed his schooling in Sydney at a Christian Brothers School in Lewisham.
31. The offender had been hoping to study architecture but his results were not good enough. He enrolled in a bridging course at UTS. He did not complete the course.
32. The offender found jobs in construction and demolition work and ultimately started his own demolition company, but this lasted for only about six months. He, his father and an uncle started a labour hire company. Unfortunately his uncle died and the business failed. The offender returned to Canberra and worked as a security guard in a pub. He later ran some businesses with a longtime friend.
33. Unfortunately again, this friend was killed when he was hit by a motorcycle. The offender then worked with some relatives doing formwork. At the time of his arrest he hoped to return to the security industry.
34. While being in custody the offender has undertaken a number of courses and has enrolled in a business degree through Curtin University.
35. The offender used to drink a fair amount of alcohol. He has used some drugs but not for some time.
36. The offender has been subjected to two serious assaults which have left him with some anxiety issues. Ms Cullen does not think that a diagnosis of Post-Traumatic Stress Disorder, as per DSM V was made out. She does however think the assaults might
have dictated his actions “in a frenzied moment”. She continued:
Hyperarousal activates the fear response whereby people will typically respond in one of three ways: flee, freeze or fight. Accordingly, it appears that having been the victim of two separate assaults whereby he previously responded by fleeing and freezing and then ruminated about not fighting, due to the harm caused to himself; the loss, grief and (inappropriate) self-blame associated with the loss of his closest friend, Tatu; his prolonged abstinence from an association with cocaine and alcohol; and the affiliation of the victim to an OMCG, thereby substantiating the genuine fear he reportedly had, has (in combination) resulted in his offending misconduct. Thus, there is a direct nexus between his underlying mental health and index offending. This trajectory is supported by the consistency of information between and across collateral information detailed herein.
37. Ms Cullen then says that as a result of her conclusions the offender, at the time of
offending would have been suffering from “other specific trauma-and-stress related
disorder.”
38. There is no competing psychological assessment relied upon by the Crown. However
an expert’s opinion is only as reliable as the facts upon which it is based. I have observed above that the offender’s suggestion of self-defence type motivations simply
does not fit with the facts as displayed on the CCTV.
39. His criminal record consists of some driving offences committed some years ago in Sydney. They are irrelevant to the current proceedings. I treat him as a man with no previous criminal record.
40. The offender has provided a number of documents to be considered in mitigation of his
sentence. Ms Fahmy, his solicitor, describes the events surrounding the offender’s
arrest and the negotiations resulting in his plea of guilty. He is entitled to a discount for his plea which I assess at 20%. In this regard I accept there was significant utilitarian value in the plea and it was at an comparatively early stage.
41. I would have allowed a discount of 25% but do not do so because the offender was easily identified and his actions are apparent on the CCTV footage. The Crown case was very strong.
42. Ms Fahmy also says that she sent a letter, through the Crown, from the offender to the
deceased’s family. In that letter the offender apologises unreservedly for his actions,
which he says:
were disgusting and selfish and I am deeply ashamed with the grief and pain I have brought upon your family and friends. I acted in the moment without thinking it was a split second that will haunt me for the rest of my life and I will never forgive myself for the pain I have caused to your family.
43. For reasons I have given above I have some reservations about whether or not the
offender did act in a “split second”.
44. It was suggested that the offender could have sent the letter a good deal earlier. I do not draw any adverse inference from the timing of the letter. I think that a person facing very serious charges and having the benefit of legal advice is entitled to be guided by whatever advice he receives and to be cautious in making contact with victims of his deeds.
The offender has also sworn an affidavit. He says he takes “full responsibility for my
behaviour, and I understand the seriousness of my offences”. Perhaps at odds with the
history given to Ms Cullen, he says that he grew up in a “loving and supportive family”.
46. The offender gives a version of the events at the nightclub which highlights the tensions that evolved from interaction between his group and that of the deceased. He says that
he “tried to intervene with the loudest of the opposing group who was making threats
towards me at this moment”.
Once again I have treated the offender’s version with caution. It does not sit comfortably
with the CCTV footage, in particular the image of the offender entering the club with
the knife in hand and his gestures to the club staff to remain silent.48. The offender has a wife who gave birth to their child while he was in custody. In his affidavit he laments his inability to be a husband and father. He ends his affidavit in this way:
I wish to apologise to the Court for coming before you like this. I am more broken and ashamed than I can put in words. I made an error in judgment that I will be sorry for the rest of my life. I can only ask for forgiveness, although I will never forgive myself.
49. The offender gave evidence and was cross examined. He expressed his remorse but could not give any reason for his conduct. In fact no motive has emerged to explain the attack upon the deceased.
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.
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.
52. There are affidavits from two barristers, Mr Stephen Stanton and Mr Thomas Woods
respectively. Mr Stanton is a family friend who emphasises the family’s values and the
out of character nature of the offending. He says:
I am confident however that Frederick, as he must, will have learned and will continue to learn from what has occurred and in serving his sentence he will come to grips with the need for a reassessment of his actions.
In that regard, I commend him to the Court with a residue of rehabilitative worth that I say is worthy of just consideration and that parsimony is never far from any just outcome that surely must be accorded to both the Victim and the Offender in this regard.
53. I take the last quoted paragraph to mean that rehabilitation is a significant factor to be taken into account. I agree. The offender is a relatively young person. He has a good background and prospects for the future even though he will only realise them after a significant period in prison.
54. Returning to the references, Mr Woods was a school colleague of the offender at Canberra Grammar School. He says:
I have no hesitation whatsoever in supporting Freddie, whom I continue to regard as a good person albeit one who has made a serious mistake.
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.
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.
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 she was, to him 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.
70. I make the following orders:
1. For the offence of assault occasioning actual bodily harm [SCCAN 156/2021] 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 [CAN 9386/2020] the offender is sentenced to imprisonment for 18 years to commence on 5 August 2021 and end on 4 August 2039.
3. For the offence of intentionally causing grievous bodily harm [CAN 455/2021]
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. I set a non-parole period of 10 years to commence on 5 August 2021 and end on 4 August 2031.
I certify that the preceding numbered paragraphs are seventy [70] a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Elkaim.
Associate:
Date: 19 November 2021
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