R v Tuivaga

[2013] NSWSC 1626

Supreme Court

New South Wales

Medium Neutral Citation:

R v Tuivaga [2013] NSWSC 1626

Hearing dates:

13 September 2013 18 October 2013

Decision date:

11 November 2013

Jurisdiction:

Common Law - Criminal

Before:

Price J

Decision:

Convicted. Sentenced to a term of imprisonment of 6 years 6 months and 23 days consisting of a non-parole period of 4 years 6 months commencing 15 June 2013 and expiring 14 December 2017 with a balance of term of 2 years 23 days commencing 15 December 2017 and expiring 6 January 2020.

The earliest date eligible to be released on parole is 14 December 2017.

Catchwords:

CRIMINAL LAW - sentencing - joint criminal enterprise - manslaughter - parity - finding of special circumstances

Legislation Cited:

Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
s 21A(2)(j), s 23A(3)(i)

Cases Cited:

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Clinton v R [2009] NSWCCA 276
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Barnes NSWSC [2013] 1627
R v Blacklidge (NSWCCA, 12 December 1995, unreported)
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Hill (1981) 3 A Crim R 397
R v Macdonald (NSWCCA, 12 December 1995, unreported)
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Previtera (1997) 94 A Crim R 76
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704

Category:

Sentence

Parties:

Crown
Kirk Daniel Tuivaga

Representation:

Counsel:
Mr P Leask (Crown)
Mr G Brady (Offender)
Solicitors:
Ms A Holloway (Director of Public Prosecutions)
Mr P Conaghan - Conaghan Lawyers (offender)

File Number(s):

2010/341540

Publication restriction:

In accordance with s 8(c) Court Suppression and Non-Publication Orders Act 2010 these remarks on sentence have been anonymised in accordance with the order made by Price J on 18 October 2013 and is to remain in place until further order of the court.

REMARKS ON SENTENCE

1. HIS HONOUR: On 26 June 2013, Kirk Tuivaga (the offender) pleaded not guilty to the charge that he on 12 October 2010 did murder Wallace Ruiz-Sanchez. The offender entered a plea of guilty to the manslaughter of Mr Ruiz-Sanchez. The Crown accepted the plea of guilty to manslaughter in full satisfaction of the indictment. The maximum penalty for manslaughter is 25 years imprisonment.

1. The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (NSWCCA, 12 December 1995, unreported). The starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Wallace Ruiz-Sanchez has been unlawfully taken: R v Blacklidge (NSWCCA, 12 December 1995, unreported).

1. During the proceedings on sentence, Mr P Leask appeared for the Crown and Mr G Brady for the offender.

1. Samuel Lockett and Carl Brown have been found guilty by separate juries of the murder of the deceased. Bradley Owen Trawin-Hadfield and Richard Barnes pleaded guilty to the manslaughter of the deceased which was accepted by the Crown in full satisfaction of the indictment charging them with murder. With no disrespect to these offenders, I will refer to them furthermore by their surnames during these sentencing remarks.

1. It has been necessary to deliver separate sentencing remarks for each offender because of the individual jury trials for Lockett and Brown and the differences in the agreed facts upon sentence for the other offenders. However, the parity principle is of importance when sentencing each of them and is not confined to sentences imposed upon co-offenders who have committed the same crime. It can also be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have actually been laid against them: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 at [30]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [136]. However, the significant practical difficulties with this approach are well recognised: Jimmy at [203]; Green at [30].

1. In my view, there is little utility in considering parity with Lockett and Brown who have been found guilty of murder. The roles that they played in the death of the deceased were much greater than the offenders who have pleaded guilty to manslaughter and there is a deal of difference between the maximum penalties for murder and for manslaughter. The question of parity is considered at [25] below. I have firmly borne in mind the principle of proportionality when sentencing all of the offenders: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

1. The pleas to manslaughter were entered by the offender and Barnes on the same day. A document was tendered by the Crown without objection which set out the basis of criminal liability for the offender and Barnes (ex A TB 1):

Manslaughter as to Tuivaga and Barnes

"1. There was in existence a joint criminal enterprise to assault Mr Ruiz-Sanchez,

2. The offenders were party to the agreement, and

3. The accused (sic) participated in the joint criminal enterprise in that they physically assaulted Mr Ruiz-Sanchez, encouraged other parties to the joint enterprise to do so, and remained present throughout, being ready and willing to assist others if need be, and

4. at a point in time before Samuel Lockett struck Mr Ruiz-Sanchez on the head with the gun, killing him, the offenders, knowing that other parties to the agreement intended assaulting Mr Ruiz-Sanchez, realised that Mr Ruiz-Sanchez was being exposed to an appreciable risk of serious injury.

5. The assault upon Mr Ruiz-Sanchez was unlawful and dangerous.

6. The offenders did not foresee either death or grievous bodily harm as a possible consequence.

7. The offenders did not foresee that another party to the agreement would employ the violence applied by Samuel Lockett, or it being achieved by use of a weapon."

1. Accordingly, the offender must be sentenced on the basis that he did not foresee the violence applied by Lockett or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise to assault the deceased.

1. A statement of agreed facts was tendered by consent (ex A TB 1). The agreed facts are:

"On 12 October 2010, the offender Tuivaga was present at his home at xxxxxxxx Smithfield. He had been working that day and had arrived home from work at about 6pm. At the house were his defacto brother-in-law Carl Brown, Brad Trawin-Hadfield, Samuel Lockett and Richard Barnes. Also at home was the offender's defacto wife, Donna Paraone, and their children.

All 5 offenders left the home in a red BMW motor vehicle belonging to the offender's defacto. The group went to xxxxxxxxxxx Mt Pritchard to the offender's defacto sister-in-law's (Jasmine Psaroudis) house.

After arriving at Ms Psaroudis' house, the offender became aware that Brown intended to confront the deceased, who lived next door xxxxxxxx. The offender was aware that Brown intended to confront the deceased over money and text messages sent to Brown by the deceased.

The five offenders left the house together. The offender was aware that a physical confrontation with the deceased was a real possibility.

The offender became involved in the physical confrontation. While involved he was grabbed by the deceased and he pushed the deceased. The offender had his head down in the fight when he heard a loud bang.

All the offenders then ran to the BMW motor vehicle. At the motor vehicle one of the offenders shouted at Lockett saying "Why the fuck did you do that?" One of the offenders then shouted "He shot him." The offender noticed that he had been shot.

The offender was arrested at about 8.10pm at Cumberland Highway, Smithfield. He was in the same BMW vehicle. Brown was also in the vehicle. The other 3 offenders were not present. The offender was taken to hospital where he was treated for gunshot wounds.

The offender agrees that he was party to a joint criminal enterprise to assault the deceased and that he participated by becoming involved in the fight.

The offender did not foresee either death or grievous bodily harm as a possible consequence or that another party to the agreement would employ the violence applied by Lockett, or it being achieved by use of a weapon."

1. I make findings of fact in accordance with the agreed facts for the purpose of sentencing the offender.

1. The offender agreed with the four others to assault the deceased, with whom the offender had no disagreement. When he left Ms Psaurodis' house, he was aware that a physical confrontation with the deceased was a real possibility. Although he did not know that a firearm was in the possession of his co-offenders, he realised that the deceased was being exposed to an appreciable risk of serious injury. He joined in the cowardly attack upon the deceased who was outnumbered. He pushed the deceased and continued his involvement in the fight until the shotgun discharged. His close proximity to the deceased at that time is evidenced by the pellet wounds that he suffered.

1. Matters that mitigate the objective seriousness of the offence are that the agreement to assault the deceased was not entered into until shortly before he was attacked. Furthermore, he did not foresee that any one of his co-offenders would employ the degree of violence used by Lockett, or that the degree of violence would be achieved by the use of any type of weapon, or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise.

1. The offender was born on 22 August 1981. He was 29 years old at the time of the offence and is now 32 years old. His prior criminal history reveals a conviction at the Parramatta District Court on 27 May 2011 for one count of reckless wounding whilst in company on 4 October 2009. The agreed facts for this offence disclose serious violence by the offender. His record also reveals driving offences of a serious nature that were committed on 27 December 2011. The particular significance of these offences is that the offender was on bail for the deceased's murder when they were committed.

1. In view of the offender's prior offence of violence, I give more weight to personal deterrence and the protection of society than otherwise would have been the case: R v McNaughton.

1. At the time of the manslaughter, the offender was on bail for the offence of reckless wounding whilst in company. It is an aggravating factor that the offence was committed whilst the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

1. On 25 June 2013, Mr Brady informed the court that he thought the matter was going to be resolved and the jury panel was not required. This was the day before the offender's trial for murder was fixed to commence. On 26 June 2013, the offender and Barnes pleaded not guilty to murder but guilty to manslaughter which the Crown accepted in full satisfaction of the indictment. Mr Brady submitted that the plea should attract a utilitarian discount of 15 per cent whereas the Crown contended that such a discount should not be more than 11 per cent. Mr Brady argued that the plea was to manslaughter rather than murder with which the offender had been initially charged, the plea saved significant court time and the deceased's family and friends having to go through the process of giving evidence a third time. I should mention that a utilitarian discount does not reflect considerations arising from the plea, such as saving witnesses from giving evidence, but this is relevant to the offender's remorse: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. Although this was a late plea, the estimated length of the trial was two to three weeks and involved issues arising from the principles of joint criminal enterprise. I assess the utilitarian value of the plea to be 12.5 per cent.

1. The offender did not give evidence during the proceedings on sentence. His background is principally drawn from the report of Tim Watson-Munro, a psychologist (ex 3). The offender was educated at Toongabbie East Primary School and Macquarie Boys Technical High School where he completed his HSC at the age of 17. He then became involved in labouring and factory work for several years xxxx xxxxx  xxxx xxxxxx xxxxxxxx in 2000 where he remained for about four years prior to his dismissal. He then returned to labouring work.

1. The offender has been in a de facto relationship for the past nine years and has three daughters aged seven, three and two. Mr Brady told me that the offender's fiancé is seriously ill suffering from cervical cancer and is presently undergoing chemotherapy which, if unsuccessful may mean a very short life expectancy. Mr Brady did not submit that these family circumstances were "wholly" exceptional so that the hardship to the offender's family by his incarceration was to be taken into account as a mitigating consideration. I do, however, take into account the offender's difficult personal circumstances.

1. Remorse as a mitigating factor is qualified by s 23A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. By his plea of guilty, the offender has accepted responsibility for the part that he played in the death of the deceased and his plea indicates contrition for his offending. Furthermore, the plea saved the Crown witnesses, particularly Ms Knaggs, from giving evidence in a third trial which I take into account as reflecting his remorse. Mr Watson-Munro reports that the offender expressed deep remorse for what occurred. I accept that the offender is remorseful. I take into account his remorse as a mitigating factor.

1. Mr Brady submitted that the offender has good prospects of rehabilitation evidenced by his remorse, acceptance of culpability, employment history, removal from Carl Brown and general law-abiding behaviour. The difficulty with this submission is that it overlooks the offender's serious offending whilst subject to bail. The offender's disregard on two occasions for his conditional liberty detracts from an optimistic view being taken: see [13] and [15] above. I am unable to make a positive finding on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. His prospects of rehabilitation remain uncertain.

1. Mr Watson-Munro was asked to provide a report "regarding the impact of [the offender's] incarceration against a backdrop of his prior employment xxxx xxxxx xxxxx": ex 3 p 2. The psychologist reports that the offender has been a segregation prisoner for the entirety of his confinement xxxxx xxx xxxx xxxx. He records the offender's claim of being given a difficult time xxxxxxxx xxxxxxxxxx. He recounts that the offender has been locked in his cell for some 23 hours a day.

1. The offender told the psychologist that he has no friends in gaol. Mr Watson-Munro expresses the opinion that this has aggravated the offender's underlying depressive illness and sense of despair. A formal diagnosis of a depressive illness has been made. The offender was placed on 30 milligrams of Avanza, but he told the psychologist that this has been of no real benefit to him. Mr Watson-Munro reports that "as testing indicates, [the offender] is still suffering Severe Depression with a particular concern referable to active suicidal ideation" (ex 3 p 4 par 2). Mr Watson-Munro writes that the offender anticipates that the balance of time that he is required to serve will be equally onerous in the context of both segregation and problems with xxxxx xxx xxxx. The psychologist opines that the offender requires treatment in addition to the psychotropic medication he is taking which should involve cognitive behaviour therapy.

1. The offender has been held in segregation and has been the subject of a non-association order. The danger to his personal safety that he faces whilst in custody xxx xxxx xxxxx xxxx xxx xxxxxx is reflected in the memorandum dated 25 June 2013 which refers to the offender being "at risk from known members of the REBELS OMCJ" and to "several Association Alerts" (ex 1). It appears that these restrictions have led to the offender being locked in his cell for 23 hours a day. As a result of the conditions of his incarceration, the offender has little contact with other inmates and is unable to access programs or courses. His ability to exercise and to make telephone calls is restricted. It is more likely than not that the offender will continue to serve his sentence under these conditions which are more difficult than the custodial conditions of the general prison population. It is well recognised that every year spent in protective custody is equivalent to a longer loss of liberty under the ordinary conditions of imprisonment: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [105].

1. Mr Brady did not submit that the offender's mental condition was relevant to the commission of the offence but submitted that it made a custodial sentence more burdensome for the offender. He also contended that it may have some impact upon the court's consideration of general deterrence. It is unsurprising that the hard conditions in which the offender is serving his sentence have aggravated the offender's underlying depressive illness and sense of despair. Although the offender has been treated for his mental condition in custody and Avanza has been prescribed, the offender's segregation makes it more difficult for treatment to succeed. I accept that the offender's sentence will weigh more heavily upon him and the conditions of his custody exacerbate his depression. I take into account the hardship that the offender experiences in custody as a matter in mitigation: Clinton v R [2009] NSWCCA 276. I do not consider that it reduces the weight to be given to general deterrence as his mental condition had no causal relationship with the commission of the offence.

1. Both Mr Crown and Mr Brady submitted that when considering the parity principle, the culpability of the offender and Barnes was the same. Although the offender became physically involved in the attack upon the deceased and Barnes did not, the offender was not aware that a firearm was in the possession of his co-offenders, whereas Barnes with that knowledge did not desist from participating in the agreement to assault the deceased and remained ready and willing to assist. I assess them as being equally culpable for the offence. I turn to their subjective cases. The offender is about two years older than Barnes but Barnes' prior criminal offending is marginally more serious than the offender. Barnes, however, is not required to serve his sentence in protection nor does he have a mental condition. In my opinion, the hard custodial conditions under which the offender is to serve his sentence justify a lesser sentence than that to be imposed on Barnes. When sentencing Barnes, I discussed the question of the offender's parity with Barnes at [21] of the sentencing remarks: R v Barnes NSWSC [2013] 1627.

1. Victim impact statements from Ms Knaggs, Maria Vinas, the deceased's mother, and Virginia Ruiz-Sanchez, his sister, were tendered to the court. The contents of these statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's partner and his family and express on the community's behalf its sympathy and compassion for them.

1. Mr Brady drew my attention to sentences imposed in other cases. Whilst I found that material to be helpful, each case depends on its own circumstances.

1. During sentencing submissions, there was some discussion about the commencement date of the sentence. It was initially contended the offender's period of time in custody that was solely referable to the manslaughter was 129 days, but this submission overlooked the offender's sentence for reckless wounding of 2 years imprisonment that commenced on 15 October 2010 and expired on 14 October 2012 with a non-parole period of 12 months expiring on 14 October 2011. The offender was also sentenced on 1 March 2012 in the Parramatta Local Court for "driving dangerously" to imprisonment for 14 months 11 days commencing on 27 September 2012 and expiring on 7 December 2013 with a non-parole period of 9 months commencing on 27 September 2012 and expiring on 26 June 2013. The earliest date that the offender was to be released on parole was 26 June 2013. The offender was arrested for the deceased's murder on 4 October 2010 and there are 11 days prior to the commencement of the sentence for reckless wounding that are solely referable to the manslaughter.

1. As the offender has served sentences for reckless wounding and driving offences since he went into custody, it is necessary to consider the principle of totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The offences for which the offender was sentenced in the District Court and Local Court and the offence of manslaughter are discrete and independent acts of criminality. This does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27]. In the present case, I consider that it is appropriate to commence the sentence on 15 June 2013 being the date that the offender would have been released on parole less the 11 days in custody that are solely referable to the present offence.

1. I find special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of term of the sentence being his need for appropriate psychological treatment upon release. I have determined that a non-parole period of 4 years 6 months is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality for the offence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63].

1. Taking into account all matters that are relevant to sentence, the appropriate undiscounted starting point of the overall sentence is 7 years 6 months. The overall sentence is reduced by 12.5 per cent to 6 years 6 months and 23 days.

1. Kirk Tuivaga for the offence of manslaughter, I convict you. I sentence you to a term of imprisonment of 6 years 6 months and 23 days consisting of a non-parole period of 4 years 6 months commencing on 15 June 2013 and expiring on 14 December 2017 with a balance of term of 2 years 23 days commencing on 15 December 2017 and expiring on 6 January 2020.

1. The earliest date that you will be eligible to be released on parole is 14 December 2017.

1. I ask Mr Brady to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence for which he has been sentenced.

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Decision last updated: 12 November 2013