R v Valahulu

[2011] NSWDC 64

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Valahulu [2011] NSWDC 64
Hearing dates:	15 April 2011
Decision date:	19 April 2011
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Total sentence of 4 years and 6 months, comprising a non-parole period of 3 years and the balance of the sentence
Catchwords:	CRIMINAL LAW - Sentence - Reckless Wounding of Law Enforcement Officer (Sheriff's Officer) - Maximum penalty 12 years imprisonment - No SNPP - If victim were a police officer maximum 12 years and SNPP of 5 years - If victim were a civilian maximum 7 years and SNPP of 3 years - QUARE Parliamentary oversight - Offender's moral culpability attenuated by mental illness (schizophrenia) - Both aggravating and mitigating factors present - No prior sentences passed for this offence
Legislation Cited:	Crimes Act 1900 s 60A(3)(a) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Sivell v R [2009] NSWCCA 286
Category:	Sentence
Parties:	Regina Vailoe Valahulu
Representation:	Ms D K Hocking (Crown) Ms C J Tawagi (Offender)
File Number(s):	2010/281426

Judgment

1. HIS HONOUR: Vailoe Valahulu stands for sentence as a consequence of pleading guilty to a charge at the earliest available opportunity in the Local Court. The offence to which the offender pleaded guilty was that on 24 August 2010 at Liverpool in this State he did recklessly, by punching, wound Daniel Rudd, a law enforcement officer, namely, a Liverpool Local Court sheriff's officer, while in the execution of the said officer's duty, namely, operating a handheld scanner at the entrance to Liverpool Local Court. There was no dispute that Mr Rudd was a sheriff's officer working at Liverpool Local Court on 24 August 2010. The assault upon him by the appellant is vividly displayed in Exhibit 2, closed circuit television footage, taken from the security system at the Liverpool Local Court.

1. About 9.30am on Tuesday 24 August 2010, the offender attended Liverpool Local Court in company with his then girlfriend, Julianne Lameley, in relation to an apprehended domestic violence order hearing in which the offender was the defendant and Ms Lameley was the person in need of protection. The offender and his girlfriend approached the scanners at the front entrance to the courthouse, which was being operated by sheriff's officers. The offender and his girlfriend entered and passed through the scanners without incident and entered the foyer of the courthouse and then attended the Legal Aid office. A short time later the offender walked out of the courthouse and stood in the courtyard area at the front of the courthouse in order to smoke a cigarette. He was joined a short time later by his girlfriend.

1. At about 9.46am the offender and his girlfriend again entered the courthouse and approached the scanners which were being operated by the sheriff's officers. At that time Mr Rudd was standing inside the courthouse on the interior side of the scanners operating a handheld metal detector. Mr Rudd was wearing the uniform of a sheriff's officer, he was on duty and performing his normal duties which had commenced at 8.30am on that day. The offender walked through the fixed scanners and was approached by Mr Rudd who, by demonstration, requested the offender to raise his arms in order to be scanned with the handheld scanner. The offender raised his arms out to the sides and Mr Rudd commenced scanning him with the handheld scanner

1. As Mr Rudd was doing that the offender drew back his right arm and formed a closed fist, then grabbed hold of Mr Rudd's right shoulder with his left hand and punched Mr Rudd in the face with a right closed fist. What is displayed on the CCTV could be described in vernacular terms as a "king hit". Mr Rudd was knocked unconscious and fell backwards onto the floor striking his head on the ground. As Mr Rudd was falling backwards the offender kept hold of his right shoulder and then punched Mr Rudd again with his right closed fist on the right side of his face and eye while he was unconscious on the ground. The offender then stood over Mr Rudd and looked at him as he lay supine on the ground, unconscious. Other sheriff's officers and nearby police reacted quickly and the police arrested the offender and cautioned him. He was then handcuffed and escorted from the Liverpool Courthouse to the Liverpool Police Station.

1. As a result of the assault the offender himself sustained an injury to the third knuckle of his right hand. Mr Rudd had injuries to his right eye, which was bleeding, his nose, which was bleeding, and the left side of his mouth, which was bleeding, and bruising and swelling developed in his face. As he lay on the ground shortly after the assault Mr Rudd commenced to convulse and was clearly having epileptic type fits. Mr Rudd received first aid at the scene. Ambulance officers were called and Mr Rudd was then conveyed to Liverpool Hospital, during which time he was lapsing in and out of consciousness.

1. The photographs of the damage to Mr Rudd's head are graphic and were clearly taken as he lay supine on the floor of the Liverpool Courthouse immediately after the assault upon him and one was taken after ambulance officers had applied a cervical collar to his neck.

1. A report from Dr Mark Flett, a medical practitioner at the Liverpool Hospital Emergency Department, tells me that the victim, Mr Rudd, had a large periorbital haematoma of the right eye which included both lids, that is the upper and lower lids of the eye. There were also four lacerations around his right eye. Doctor Flett found dried blood in both his nostrils suggesting a nosebleed had occurred prior to his assessment of Mr Rudd in the emergency department. The doctor also noted a swollen left upper lip and abrasion on the lip. There was a fracture of the rim of the right eye socket on the lower side of the eye and CT scan also revealed fluid in the right maxillary sinus. Doctor Flett also noted bruising and tenderness over Mr Rudd's right collarbone and chest but there was no abnormality in the right shoulder or chest on x-ray. I have been told by Ms Hocking, from the Bar table without objection, that Mr Rudd has returned to his normal duties at the Liverpool Courthouse and no one has placed before me any evidence to suggest that Mr Rudd has any ongoing problems as a result of the assault upon him by the present offender. That is fortunate both for Mr Rudd and for Mr Valahulu.

1. Leaving aside the mental element of the offence and the offender's personal circumstances, the assault upon Mr Rudd can be described as both brutal and vicious. It was also cowardly because Mr Rudd had no warning whatever of the assault that was perpetrated upon him. He had no opportunity to defend himself and the striking of an unconscious man on the ground with a fist to the head can only be described as cowardly in itself. This is a serious offence contrary to s 60A(3)(a) of the Crimes Act 1900. It carries a maximum penalty of twelve years imprisonment. There is no standard non-parole period. Under s 60(3) of the same Act the reckless wounding of a police officer carries a maximum penalty of twelve years imprisonment and there is a standard non-parole period of five years. Had Mr Rudd been a civilian rather than a law enforcement officer, the reckless wounding of him would have carried a maximum penalty of seven years imprisonment pursuant to s 35(4) of the same Act for which there is a standard non-parole period of three years. Whether Parliament's failure to specify a standard non-parole period for an offence contrary to s 60A(3) is due to a deliberate choice of Parliament or Parliamentary oversight is not for me to determine. I must approach the matter on the basis that there is no standard non-parole period.

1. There was some discussion last Friday with the representatives of the parties about the seriousness of this offence. I must bear in mind what the Chief Judge at Common Law, Justice McClellan said in Sivell v R [2009] NSWCCA 286 at [5]:

"The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered."

In the same case, Fullerton J said at [32]:

"A sentencing judge is obliged to utilise the concept of mid-range offending, and customarily appoints positions within or outside that range as a standard or measure against which to assess objective seriousness, when sentencing for offences where a standard non-parole period applies under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act . This is in accordance with the approach mandated by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, it is neither necessary nor in most cases desirable for sentencing judges to make an assessment of the objective criminality in respect of offences not governed by a standard non-parole period with that same degree of nuance. I do not intend by that observation to suggest that there are not cases where particularity in the appointment of offending within a mid-range of offending will not be warranted in order to ensure that reasons for the imposition of a particular sentence achieve the objectives of clarity and transparency. When sentencing co-offenders it is often necessary to differentiate in this way in recognition of the need to ensure parity in the sentences imposed. In many cases, however, it is sufficient for a sentencing judge to make an assessment of objective criminality by reference to the maximum penalty, and to those other features of the particular offending that bear upon the gravity of the offence having regard to the circumstances of its commission, on a broad gradient of seriousness."

1. This offence was committed whilst the offender was on bail for a charge of common assault. The common assault was upon his girlfriend and eventually the offender was sentenced in the Local Court for that common assault on 15 December 2010. However, the fact that the offender was at conditional liberty at the time he committed this offence is, objectively, an aggravating factor and a serious aggravating factor.

1. The present offender has a lengthy criminal history which contains many offences of personal violence. The offender first came to the notice of the law at the age of fifteen when he was charged with robbery in company. For that offence that Children's Court at Lidcombe imposed probation. I shall, after this point, only refer to crimes of violence against the person. On 19 November 2002, when he was sixteen years old, the offender was charged with assaulting an officer in the execution of the officer's duty. For that, Children's Court at Campbelltown placed the offender on probation. On 15 February 2003, when the offender was still sixteen, he was again charged with assaulting an officer in the execution of the officer's duty, and again probation was imposed by the Children's Court. On 6 April 2003, when the offender was seventeen, he was again charged with assaulting an officer in the execution of the officer's duty. Again the Children's Court at Campbelltown imposed probation. On 19 May 2003, when the offender was seventeen, he was again charged with assaulting an officer in the execution of the officer's duty. Again the Children's Court imposed probation. On 10 April 2006, when the offender was aged twenty, he committed the offence of assaulting a police officer in the execution of the officer's duty and caused the police officer actual bodily harm. At the same time, the offender committed assaults upon two other officers. The offender was sentenced to imprisonment for eight months with a six month non-parole period. On 12 August 2007, the offender was charged with using an offensive weapon with intent to commit an indictable offence as well as two charges of common assault. The offender was then twenty-one years old. He was sentenced to imprisonment for fourteen months with a non-parole period of five months. On 28 August 2007, the offender was again charged with common assault and a stalking offence for which imprisonment was imposed but that is reflected in the same period of imprisonment as the offences of 12 August 2007. On 20 October 2007, the offender was charged with assaulting an officer in the execution of his duty. There were two counts for that offence. The offender was sentenced to imprisonment for fourteen months with a non-parole period of five months but that sentence was served concurrently with the sentence for the offences of 12 August 2007 and 28 October 2007. The remaining offence of violence was that committed on 6 July 2010, a common assault upon his girlfriend, for which he was sentenced by the Local Court at Campbelltown on 15 December 2010 after he committed the present offence.

1. The offender's criminal record does not allow this Court to approach the matter with any leniency and it does indicate that the appellant is prone to commit crimes of violence, and it would appear that he is prone to commit crimes of violence against police officers and other law enforcement officers. Ms Hocking was able to tell me that one of the offences, to which I have referred in the offender's criminal history, related to a prison officer and it may well be that some of the assaults were against either Juvenile Justice officers or Corrective Services officers.

1. The question is why was this offence committed? That requires me to consider the personal circumstances of the offender. He was born on 23 March 1986 in Tonga. He is currently twenty-five years old. At the time that he wounded Mr Rudd he was twenty-four years old. The offender was raised in Tonga by his paternal grandparents but moved to Australia in 1999 following the death of his grandfather. His parents and other members of his family had earlier moved to Australia. According to the pre-sentence report the offender's relocation to Australia occurred at the age of thirteen. According to that report the offender has seven siblings. The offender's parent's relationship was marred by episodes of domestic violence. According to the pre-sentence report, the offender claimed to have experienced physical abuse from his father resulting in the offender being removed from the family home on one occasion by the Department of Community Services. However, the offender was unable to recall for how long he was in foster care. The offender's nuclear family has split up, his mother and three sisters relocated to New Zealand five years ago, but the offender's father and his brothers remain in Australia. However, the offender told the Probation and Parole officer who compiled the pre-sentence report that he was unable to reside with his father or brothers because of his own behaviour and mental health issues.

1. After the offender came to Australia he went to high school here, but had problems from the beginning because of his inability to speak English. He had behavioural problems at school and according to what the offender told Dr Jonathan Adams, a forensic psychiatrist, who examined him on 29 September 2010, used to see the principal on a daily basis as a result of smoking cannabis at school. According to Dr Adams' history the offender left school in 2004, when he would have been sixteen, with no qualifications. The offender was employed as a cleaner for approximately four months after leaving school but since that time has had a variety of jobs lasting less than six months and it would appear that all of them have been casual. According to Dr Adams' history the offender has not worked since 2006.

1. The offender has been diagnosed with a psychosis, most probably schizophrenia. That is a diagnosis which the offender told Dr Adams had been made in the past and which diagnosis is confirmed by Dr Adams. The evidence does not enable me to establish what is the source of the psychosis. One can postulate that it is a genetic condition and therefore inherited by the offender and is idiopathic. One might also speculate as to whether the psychosis has been induced by illicit drug use and one can also speculate as to whether it is a combination of an underlying genetic propensity, or organic propensity together with the use of illegal drugs that precipitates episodes of the offender's psychosis.

1. The offender has been using illicit drugs since the age of fifteen. At that age he commenced smoking cannabis, usually five cones per day. He began using heroin at the age of sixteen, up to four times per day. The offender denied to Dr Adams injecting heroin and said that he always smoked it. However, the offender commenced using crystal methylamphetamine, or 'ice', every two weeks following his discharge from a psychiatric hospital in March 2009 or it may well have been in 2010. The offender's use of ice was intravenous. At the time the offender started using ice he started using amphetamines and again was injecting those drugs. According to the history given by the offender to Dr Adams, leading up to the offender's arrest for the current crime, he was smoking five cones of cannabis each day, using amphetamines and ice every fortnight and injecting heroin approximately twice per week.

1. The last statement is one that I have correctly quoted from Dr Adams' report. One must note that initially the offender told Dr Adams that he only smoked heroin but he told Dr Adams that in the period up to his committing the current offence that he was injecting heroin twice weekly. Accordingly to the history obtained by Dr Adams, the offender was unclear as to the quantity of alcohol that he was drinking in the period up to the time that he committed this offence.

1. On the question of causation I note that Dr Adams obtained a history that there was no family history of mental illness or suicide. I was told by Ms Tawagi, from Bar table, for the offender, that one of the offender's brothers has a mental health problem, but then I note from the history obtained by Dr Adams that two of the offender's brothers are the users of illicit drugs.

1. The offender gave Dr Adams a history of a number of suicide attempts, one by slashing his left wrist and two by attempting to hang himself. As to the offender's mental health prior to committing this offence Dr Adams records this history:

"As mentioned above, Mr Valahulu said he had previously been admitted to psychiatric hospitals. He told me that Liverpool Mental Health Team followed him up over the period leading up to his arrest. He said he was treated with oral Quetiapine (an anti psychotic) and also injectable medication every two weeks, but he was unclear as to the name. Mr Valahulu told me that he missed two injections prior to his incarceration. Mr Valahulu [has had] differing psychiatric treatment over the years. He said he was treated under the provisions of a Community Treatment Order following his most recent discharge from a psychiatric hospital."

I know from Exhibit 4, and a concession made by the Crown, that the offender's last admission to a mental health institution was between 24 October 2009 and 13 May 2010.

1. Under the heading "Alleged Offence" Dr Adams' report contains the following history:

"Mr Valahulu said that around the time of the alleged offence he was living with his partner and was not employed. At this point in the interview Mr Valahulu altered his account with regards [to] his psychiatric history at this time, and informed me that he was non-compliant with oral psychiatric medication as well as missing his previous two psychiatric medication injections. He said that he was not in regular contact with his caseworker at this time.

Mr Valahulu said that he only slept for approximately two hours the night before the alleged offence, and that he was 'feeling anger' prior to attending Court. He informed me that he was attending Court with his partner so that she could remove the Apprehended Violence Order that was in place. Mr Valahulu informed me that he was told that the AVO could not be removed, which resulted in him feeling 'more angry'. Mr Valahulu told me that he left the Court to smoke a cigarette and that on his return the security guard asked him to raise his arms. Mr Valahulu stated, 'That's when I punched him'.

On direct questioning Mr Valahulu said that he heard the voice of the 'devil' instructing him to 'punch anybody' on the day of the alleged offence. He believed that it occurred within the internal space, but he appeared somewhat vague in his description. Mr Valahulu commented, 'the voice told me to punch the officer...I believe that God told me about this'. Mr Valahulu proceeded to describe a 'dream' which he had had prior to the alleged offence, such that he knew that there would be a 'problem' on that day.

With regards [to] the alleged victim, Mr Valahulu denied any prior fear of him, or believed that the security guard meant him harm. He also denied concerns that the security guard was involved in the secret service - see below for the relevance of this."

1. The offender chose not to give any evidence. He is not required to. However, it does mean that I must approach medical histories and histories obtained by the Probation Parole Service with caution. One must note the inconsistency pointed out to by Dr Adams in the histories given by the offender as to his being compliant or not with his medication and treatment immediately prior to the current offence. I also note what appears to me to be inconsistency as to whether the offender was told by "the devil" to commit this crime or whether it was "God" who told him to do it.

1. The offender has had delusional states for some time. One of his delusions is that uniformed officers of this State are part of a "secret service" which is spying upon him. Such delusions may explain why the offender has committed so many assaults upon police and law enforcement officers. However, it is clear that the offender was angry, more angry than he normally was, when he ascertained that the AVO could not be removed and it appears that he lashed out at the first authority figure that he saw when re-entering the courthouse, the sheriff's officer wielding the handheld metal detector.

1. The offender told Dr Adams that on being admitted to prison he was placed in the Mental Health Screening Unit (MHSU) at the MRRC for approximately six weeks. The offender told Mr Adams that he "got worse" after his transfer into the MHSU. Nevertheless, Dr Adams tells me that from a review of the available Justice Health medical records the offender's mental state has improved since August 2010. He believed the record shows that the level of intensity of the offender's symptomatology has lessened and the distress caused by his symptomatology has diminished and he appears to attribute that to regular input from the mental health staff and the provision of appropriate psychiatric medication.

1. Doctor Adams reviewed the offender again on 16 February 2011 and noted an overall improvement in the offender's condition since his last examination of him. The offender admitted to Dr Adams on 16 February 2011 that he seemed to be more calm and better than he was on the last occasions. He believed that the voices which he heard were less severe and less preoccupying and the offender told Dr Adams that he thought he could better control the voices that he heard from time to time. Doctor Adams observed that the offender had an improvement with his sense of humour. Significantly, the offender denied to Dr Adams using any illicit substance since he had been incarcerated.

1. There is much to be said for the fact that the offender is improving. For example, the pre-sentence report commences with a recitation of the offender's prior contact with the Department of Corrective Services. The offender's prior contact with the Department of Corrective Services has been completely unsatisfactory. It is recorded thus:

"Service records indicate that Mr Valahulu first came into contact with this Service in December 2007, when he received a term of imprisonment of 14 months, with a non-parole period of five months for the offence of common assault.

Throughout that period of custody Mr Valahulu continued to use illicit substances and consequently suffered a psychotic episode. The offender was transferred to Long Bay Correctional Centre Hospital and was placed in a safe cell during which time he caused several thousand dollars worth of damage. He was reinstituted on anti psychotic medication and the Parole Order was revoked prior to release due to the offender's inability to secure suitable housing, his unwillingness to undertake appropriate intervention to address his alcohol and other drug related issues, his consistent non-compliance with mental health intervention and prescribed medication when in the community and he is assessed a high risk of re-offence. Overall it appears that Mr Valahulu consistently demonstrated an unwillingness to work with this Service in order to address his needs.

Mr Valahulu was released to parole on 9 April 2008, following the attainment [sic] of suitable accommodation and the development of a community case management plan, including community mental health support and six additional parole conditions. The offender was considered to be in breach of this parole order one day after his release by virtue of a failure to follow the directions of this Service, failure to reside at the approved address, with his whereabouts considered to be unknown, and failure to engage with the community mental health team. Consequently the offender's Parole Order was revoked and he completed the remainder of his parole period in custody."

1. However, the offender's response to supervision by Corrective Services since his incarceration for the current offence has been much more promising. The same pre-sentence report tells me this:

"The offender's behaviour throughout custody has since improved. Currently housed within the MRRC the Mental Health "Step Down Unit" records note that the offender has made recent attempts to comply with Correctional Centre routine."

It would appear that with appropriate psychiatric treatment and compliance with psychiatric treatment and abstaining from illicit substances the offender's mental health has improved and also has his behaviour in custody and response to custody. On this occasion, unlike his earlier period of imprisonment, the offender has not been using illicit drugs whilst in custody. That ought augur well for the future, but I note that the offender told the lady who prepared the pre-sentence report that the offender himself believed that the improvement in his condition was the result of his praying. I am not one to deride the power of prayer but it must be accepted that a psychosis is an organic condition, that it is due to chemical abnormalities in the brain, and is controlled by appropriate psychiatric medication. The offender's behaviour and attitude may change with prayer but he must remain compliant with his treatment regime.

1. I note that in the past the offender has completed a six month residential rehabilitation program for his drug abuse in 2003 but returned to illicit substances immediately after he completed that program. Ms Connolly from the Probation and Parole Service believed that the offender had no insight into the negative impacts of his illicit substance abuse on his psychiatric condition. Throughout her interview with him he told her that he enjoyed using drugs because they "felt nice".

1. Clearly, at the time that the offender committed this assault upon Mr Rudd he was suffering from a mental illness. That attenuates his moral culpability for this vicious and brutal attack upon Mr Rudd. However the offender does bear some personal responsibility, evidenced by the fact that he has pleaded guilty to this charge rather than pleading insanity, and he admitted to Dr Adams being particularly angry on this day when he was told that the AVO could not be revoked.

1. The offender's mental health, his psychiatric illness and his reduced moral culpability for this crime make the sentence to be passed upon the offender not an appropriate vehicle for general deterrence. Fortunately there do not appear to have been many assaults upon sheriff's officers and neither the Crown nor the offender's solicitor nor I could find any case in which a sentence has earlier been imposed for an offence contrary to s 60A(3)(a) of the Crimes Act 1900. It would appear that Mr Valahulu is the first person to stand for sentence for this offence. However, the authorities make it clear that sometimes for a violent offender, even with reduced moral culpability, the question becomes not only subjective deterrence but the protection of the community. That would seem to indicate that the offender should be kept out of the community for a lengthier period of time to ensure that others are not the potential victims of some assault that the offender might perpetrate. However, since the offender is prone to assaulting uniformed law enforcement officers, if he is locked up for a lengthy period of time he is exposed to uniformed law enforcement officers, namely Corrective Services officers.

1. The sentence I pass must deter the offender, must draw to his attention the fact that society cannot tolerate its law enforcement officers being assaulted as they try to carry out their work, for which they often receive little or no thanks or recognition, and the sentence I pass must do something to ensure the safety of our society, to ensure the offender's compliance with his psychiatric treatment, that he continues to take his psychotropic medication, to stay under the care of a mental health team and to ensure that he does not relapse to illicit drug use. I must consider the question of rehabilitation, which is one side of the coin, the other side of which is called the prospects of re-offending. It is hard to make any positive assessment of the prospects of rehabilitation. All I can say is that if the offender stays under the current treatment regime and abstains from illicit drug use, the prospects of rehabilitation are good. The question really is, how will the offender fare in the community once released to parole? What occurred in April 2008 does not augur well but the offender's response to his current incarceration was much better than his response to incarceration which commenced in December 2007. Things can only seen to be hopeful.

1. Bearing in mind the seriousness of this offence, the maximum penalty prescribed by Parliament, the offender's unfortunate criminal history, and the aggravating factor that this offence was committed whilst the offender was on bail, but bearing in mind the offender's reduced moral culpability for the crime, and on this occasion his positive response to incarceration, I believe the appropriate starting point for the current sentencing exercise is a head sentence of six years imprisonment. I reduce that by twenty-five per cent on account of the utilitarian value of the offender's plea of guilty at the earliest available opportunity. That fixes a head sentence of four years and six months. I believe the appropriate non-parole period to be three years imprisonment which will allow the offender to be released, at the discretion of the Parole Board, to parole at the expiration of three years and have the potential to have the offender under the direction of the Probation and Parole Service for eighteen months to ensure that any improvement which continues, and I trust it will, due to the offender's incarceration, in his mental health, will be continued on his release from custody and that the offender will abstain from illegal drug use. The offender must realise that the illegal drug use is likely to precipitate an episode of his psychosis, that is to make his condition worse, and lead to his committing crimes whilst acting out his delusions.

1. The remaining issue is when should I commence the sentence? The offender was taken into custody on the day that he committed this offence, 24 August 2010. However, part of the period since his going into custody can be attributed to the offence of the 6 July 2010 for which the Local Court at Campbelltown imposed a sentence of four months imprisonment commencing on 20 October 2010 which still seems to me, despite the explanation given to me by Ms Tawagi, an odd date on which to commence a period of imprisonment when the sentence was passed on 15 December 2010. However, I accede to the submission put to me on behalf of the offender that because the offender was in custody the Local Court did not consider any alternative to full-time imprisonment for the offence of common assault and full-time imprisonment for a common assault is not generally appropriate. I am, therefore, prepared to backdate the sentence to 24 August 2010. Clearly, in fixing the non-parole period which I have, is implicit a finding of special circumstances. The special circumstances are clearly the need for the offender to be closely supervised for a lengthy period on his release to parole to ensure that he remains compliant with his psychiatric treatment and that he abstains from illicit substances.

1. Vailoe Valahulu, on the charge that on 24 August 2010 at Liverpool you did recklessly, by punching, wound Daniel Rudd, a law enforcement officer, namely, a sheriff's officer, while in the execution of the said officer's duty, you are convicted. I sentence you to imprisonment. I set a non-parole period of three years commencing on 24 August 2010 and expiring on 23 August 2013. I impose a further period of imprisonment of one and a half years to commence upon the expiration of the non-parole period and expiring on 23 February 2015. The total sentence therefore is four and a half years, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.

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Amendments

21 November 2012 - Amended title - surname of offender only

Decision last updated: 21 November 2012