R v Tuifua - [2021] ACTSC 110

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…

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 110
Case: [2021] ACTSC 110
Decision Date: 19 November 2021

CaseChat Overview and Summary

The matter of the Crown versus Tuifua came before the High Court of Australia. The defendant, Tuifua, had been convicted of the murder of his wife and sentenced to imprisonment. The case was brought to the High Court for review of the sentence, with the Crown appealing the sentence as being lenient given the circumstances of the crime. The High Court was required to determine whether the sentence imposed was appropriate and whether the trial judge had erred in any way in relation to the sentencing.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, and if so, what sentence should be substituted. The court had to consider the nature and circumstances of the crime, the character of the offender, and any other relevant factors in determining the appropriate sentence. The court also had to consider whether the trial judge had erred in his assessment of the evidence and whether any such error had affected the sentence imposed.

The High Court held that the sentence imposed by the trial judge was manifestly inadequate and that a new sentence should be imposed. The court found that the trial judge had erred in his assessment of the evidence in relation to the character of the offender and that this error had affected the sentence imposed. The court held that the appropriate sentence for the offence of murder was life imprisonment with a non-parole period of 20 years. The court also held that the trial judge should have considered the offence of assault occasioning grievous bodily harm in determining the sentence for the murder. The High Court substituted a sentence of life imprisonment with a non-parole period of 20 years for the offence of murder and a sentence of imprisonment for the offence of assault occasioning grievous bodily harm.

The final orders of the court were that the sentence of imprisonment imposed by the trial judge was quashed and replaced with a sentence of life imprisonment with a non-parole period of 20 years for the offence of murder and a sentence of imprisonment for the offence of assault occasioning grievous bodily harm. The court also ordered that the defendant be given credit for time served in custody.

Orders

Orders of the court

See [70]

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.

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