R v Waqabaca

[2020] NSWDC 448

District Court

New South Wales

Medium Neutral Citation:

R v Waqabaca [2020] NSWDC 448

Hearing dates:

20 July 2020

Date of orders:

12 August 2020

Decision date:

12 August 2020

Jurisdiction:

Criminal

Before:

M Adams QC ADCJ

Decision:

Aggregate head sentence 16 months imprisonment and the non-parole period 12 months

Catchwords:

CRIME - intent to commit an indictable offence namely assault - intentionally damage the property of the tenant by means of fire

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Smith and Bardini (NSWCCA, 11 September 1987, unreported)

R v Tillott (1991) 53 A Crim R 46

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
Suka Waqabaca (Offender)

Representation:

Counsel:
S Ormanhales of Counsel (Offender)

Crown:
S Choi, Solicitor Advocate

Solicitors:
Director of Public Prosecutions
PW & Associates Solicitors (Offender)

File Number(s):

2019/00300507

Judgment

Introduction

1. Arising out of circumstances that occurred in the late afternoon of 25 September 2009 the offender Mr Suka Waqabaca was charged to the following effect –

1. on 25 September 2019 at Campsie in the State of New South Wales he was armed with a weapon, namely a timber baseball bat, with intent to commit an indictable offence namely assault, contrary to s114(1)(a) of the Crimes Act 1900 ; and

2. on 25 September 2019 at Campsie in the State of New South Wales he did break and enter the subdivided granny flat unit of the victim [unnamed for privacy reasons] and then did commit a serious indictable offence, namely intentionally damage the property of the tenant by means of fire, contrary to s112(1)(a) of the Crimes Act 1900.

2. The first charge carries a maximum term of imprisonment of 7 years. Section 115 of the Crimes Act 1900 provides that an offender who has already “been convicted of any indictable offence [and] afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years”. However, it has been held that this creates a distinct offence and the prior conviction must be averred in the charge: R v Smith and Bardini (NSWCCA, 11 September 1987, unreported; and see R v Tillott (1991) 53 A Crim R 46). As detailed below, the offender was convicted of an indictable offence in 2006 and again in 2015. However the element of a prior conviction was omitted from the charge to which he pleaded guilty and, accordingly, he is only subject to the initial maximum penalty of 7 years imprisonment. The second charge carries a maximum term of imprisonment of 14 years. Neither carries a standard non-parole period.

3. The offender pleaded guilty to these offences at the earliest opportunity. It is common ground that he is entitled to the benefit of a 25% deduction in the sentences which would otherwise be imposed: Crimes (Sentencing Procedure) Act 1999, s 25D.

4. The offender also asked, under s 33 of the Crimes (Sentencing Procedure) Act 1999 that an offence of stalk/intimidate under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 be taken into account. I am satisfied that it is appropriate to do so. This offence carries a maximum penalty of imprisonment for 5 years or 50 penalty units, or both.

Facts

5. An agreed statement of facts was tendered, from which the following account is largely taken. The victim and the offender occupied different rooms in a boarding house which had a communal shower, toilet and kitchen. The victim’s room was in a granny flat in the rear yard of the premises whilst the offender rented a room in the main house. There had been a number of issues with the behaviour of the victim since he had moved into the premises which had upset both the offender and a number of the other residents.

6. On 24 September 2019 the victim and a friend were leaving the former’s room when they got into a verbal altercation with the offender, who made threats against the victim. The victim and his friend left the house and returned to later that night but did not see the offender at that time.

7. Shortly before 4pm on 25 September 2019 the victim left his room to go to the toilet in the common area. He entered the toilet and closed and locked the door. After about five minutes there was a loud thud on the door. The victim said, “I am in here”. The offender said “I am going to kill you”. The victim recognised the offender’s voice and was frightened. He responded, “Why? Can you wait for me to finish?” The offender banged on the door three more times. The victim had his phone with him and dialled 000 but did not end up speaking to anyone. The offender repeated, “I am going to kill you”. The victim said “Stop. Excuse me, I’m still in here”. On the third bang the door swung open and the offender stood in the doorway holding a wooden baseball bat. These are the facts relied on in respect of the Form 1 offence.

8. When the door swung open the victim tried to push it closed but the offender put his right foot against the door to hold it open and struck the door with the bat. The victim managed to push the door closed and locked it. He lifted the window off to try to escape but saw the offender standing outside the window. The victim yelled “Stop”. The offender resumed banging on the door. The victim jumped out of the window and ran from the house. He turned and saw the offender near the driveway and kept running. The victim went into the common area of a nearby block of units and call 000 (logged at 3:45pm). He told the operator what had happened and that he was scared, that he was not sure why the offender had attacked him but he might have upset him the night before. After a while he was told by the operator that police had arrived at the house and it was safe for him to go back. As he returned, he saw smoke coming from the house. He was upset and crying. He was with police as they dealt with the fire. The fire brigade was also notified and attended. These are the facts relied on in respect of the first charge.

9. After the fire was discovered, the residents of the boarding house were standing outside in the presence of the offender who said to one of them, “I have sacrificed myself for you guys”. When police approached the offender said to them “I lit that, I lit that. I am the one who lit the fire”. He was cautioned, arrested and taken to Campsie police station where he made a statement to police. Crime scene officers attended the property and inspected the scene. They concluded that the fire had started on the lounge in the victim’s room but could not determine exactly how it had been started. The offender set fire to a cushion on the lounge in the room.

10. During his interview with police the offender made a number of admissions to the following effect. He said that he had lit the fire to burn the victim’s room. He claimed that when the victim was in the toilet he was drunk. He had been a tenant for six or seven months and the “house is upside down now because … He’s on speed. He is a young boy and his brain is affected from … I do not know the problem he has”. He said that the people in the boarding house did not know what to do with the victim, “So I’m standing up for them”. He said the victim was always challenging him to fight and had threatened to kill him. He said that the residents all had sleepless nights, “because of this kid. We are all old there.” Everyone was distressed. He was just trying to be the peacekeeper. He had gone to the toilet not knowing that the victim was going to be there but, when he realised he was in there, he went back to his room, got the bat and returned. He asked the victim whether he wanted to fight. He said that, after he kicked the door with his foot, the victim “popped his head out” and he swung the bat at him but hit the door because the victim closed it. He then heard the victim clamber out the window. He said that if he had got access to the victim he would have “beat the shit out of him”, he was going to “smash it on his head”. He said he was out of control when he had the baseball bat and his anger just grew in momentum. He was fed up, he had had enough. After hitting the toilet door he went to his room and got his lighter, went to the victim’s room and kicked the door open having decided he was going to burn the room. He put his lighter to the couch cushion, then left the room and waited in the main house for the police to arrive. He went back to the granny flat to check the fire was “working”. It was. He set the fire to send the victim a message that he was going to “take the law in my own hand”. He had no intention of destroying the main house. He just wanted to burn the victim’s flat.

Prior criminal record

11. On 13 February 2007 the offender was convicted of the offence of maliciously inflicting grievous bodily harm and sentenced to a term of two years imprisonment commencing on 15 March 2006 with a non-parole period of 10 months and 30 days. On 3 September 2015 the offender was convicted in the Local Court of the offence of assault occasioning actual bodily harm and sentenced to a suspended term of four months imprisonment.

Subjective features

12. The offender was aged 61 years at the time of the offences and is now 62.

13. The following account of the offender’s personal circumstances he is taken from a psychological assessment report prepared by Margaret Johnson, a forensic psychologist retained on behalf of the offender. This was admitted by consent and the prosecution took no issue with its contents. In the circumstances, I think it appropriate to rely on the account recorded by Ms Johnson of what the offender told her.

14. The offender is a male of Islander heritage who was fit and healthy with no apparent physical difficulties or disabilities. He was oriented to time and place and appeared to settle quickly into the process of the assessment. However, he frequently diverted the conversation into discussions about his religious views and opinions, though was able to return to the subject matter of the examination when redirected to do so. The offender was born and grew up Fiji with his family which included nine siblings. Both of his parents are deceased and he believed his siblings still reside in Fiji although he has not had any contact with his family for many years. He described his early years in positive terms. His father was a teacher, a doctor and then finally a Methodist minister. His parents wanted him to become a minister but he preferred instead to pursue a career as a professional rugby player. However, for something like the last 20 years he has he has wanted to be a minister. He attended formal schooling to year eight but school was not of interest to him and, although he attended a Methodist Leadership College for 12 months after ceasing school, he did not succeed and left to commence work. He played professional rugby for several years in Fiji and eventually was signed on in Australia to play from 1981 to 1986. He remained here and gained permanent residence after his rugby career ended. He has had many unskilled jobs of various kinds over the years but has been mostly unemployed for the past six. He said he had been smoking marijuana almost daily for the past 10 years and thought it enhanced his religious experience. He said he intended to give it up once he was released from prison although Ms Johnson was somewhat sceptical of the seriousness of this proposal. He drinks beer most days and Kava weekly. He has become addicted to gambling.

15. The offender has been twice married but separated from his second wife in 2000. He has not been in any other relationship since and has few if any close friends. He has strongly held fundamentalist Christian views. Many of his most profound religious of experiences have occurred, he said, while smoking cannabis, which he thought assisted him to find the true meaning in the Bible as he read it whilst “stoned”. He said that the Uniting Church, with which he wished to be associated, was not able to understand how important he was and how necessary it was for him to be able to preach and evangelise. Ms Johnson thought that there was a level of delusional thinking in these statements that suggests he is thought disordered, stemming from his early life experiences and heavy drug use.

16. Psychometric testing, which it is unnecessary to detail, had demonstrated that the offender fulfilled the diagnostic criteria for Alcohol and Drug Addiction and Delusional Disorder. When he has experienced episodes of unrestrained rage, he would also fit the diagnostic criteria for Intermittent Explosive Disorder. However, he does not fulfil the diagnostic criteria for any form of schizophrenia since he does not report hallucinating, nor does he appear to be experiencing psychosis. The offender denied ever experiencing anything he identified as mental health issues but, on the contrary, stated he had been blessed with positive mental health his entire life. However, he admitted there had been times in his life when he has become very angry and lashed out at others but these were self defence and as a result of sustained provocation.

17. He told Ms Johnson that his 2006 offence occurred when he was praying and a Muslim yelled at him to shut up, which he found offensive. He began arguing with the person, who struck out at him a number of times. He hit him in the legs with a pipe “so he could not stand”. His actions were his way of defending his religious beliefs. (I interpolate that his plea of guilty to the offence of maliciously causing grievous bodily harm necessarily implies that he was not acting in self defence or, if so acting, his violence was unreasonably excessive.)

18. So far as the present charges are concerned, he said that the victim had been disruptive and disrespectful of other residents in the boarding house for some time and he felt the need to protect their interests by threatening him. He believed that he was doing the work of Jesus by defending the rights of the other residents. Although he had pleaded guilty, he was adamant that he acted in line with his religious beliefs to protect others who were being oppressed by the victim. Ms Johnson opined that this explanation was delusional.

19. Ms Johnson concluded as follows –

“At the time of the offence and for some time prior and since Mr Waqabaca has suffered from a Delusional Disorder based on extreme Fundamentalist Christian beliefs and the delusion that he is somehow a “chosen” one and doing the work of Jesus in the community when he acts in a violent or aggressive manner.

…

Mr Waqabaca requires Anger Management treatment to reduce his Intermittent Explosive Disorder and Dialectic Behaviour Therapy to address his Affect Regulation deficits. Finally, to treat the Delusional Disorder, he would require psychiatric care and may need to be commenced on psychotropic medication. However, these are not particularly effective for this form of disorder. Any psychotherapy would need to be undertaken by someone who would need to be seen as an authority on the subject of the Christian faith who could then challenge his faulty and delusional beliefs that are fuelling his criminal behaviour.”

20. The offender’s religious beliefs cannot of themselves be treated as adverse. Indeed, to some extent they may be favourably viewed as showing that he was not motivated by any hope of gain. However, acting on the belief that that the commission of a crime of violence is morally justified must be regarded, from the point of view of the criminal law, as requiring stern correction, since it strongly suggests that the application of ordinary reason may be of limited utility. In other words, the offender’s justification for committing the present charges, far from being mitigating, indicates that the element of personal deterrence needs to be given significant weight. This is especially so in light of his previous conviction for a serious violent offence. Although I do not altogether reject the offender’s assertion that he was acting in the interests, not only of himself, but also of the other residents of the boarding house, this smacks of an attempt to justify what he otherwise understands, at least partially, as acting out of his extreme feelings of anger.

21. I am prepared, nevertheless, to act on the basis that the offender genuinely thought his conduct was justified, though I must point out that this does not significantly mitigate the seriousness of his offences. It was submitted on the offender’s behalf that I should regard his pleas of guilty as evidence of remorse. I think it is evidence that he accepts his guilt of criminal offences and, in that sense, takes responsibility for them. But, at the same time, he does not accept that he committed serious wrongdoing. His attempted justification for his actions does not demonstrate remorse.

Objective seriousness

22. There can be no doubt that both offences are objectively very serious. In relation to the first, however, an important consideration is that, despite appearances, the Crown has particularised the intended serious indictable offence as a common assault, which is to say that, so far as intended violence was concerned, this is at the lowest level. I say “despite appearances” because of the offender’s admissions to police that he was going to “smash” his baseball bat on the victim’s head and “beat the shit out of him”. In ordinary parlance this would convey an intention, if not to cause grievous bodily harm, at least wounding, with actual bodily harm as the least possibility. Indeed, had the victim not warded off the blow aimed at him by closing the door, the consequence of the offender’s violence may well have been catastrophic. This is relevant to the assessment of objective seriousness, whatever the offender’s intention.

23. The offender did not have possession of the baseball bat, as it were, accidentally when he came across the victim but, when he located him in the communal bathroom, he went to get it for the purpose of committing an assault. This offence should not be regarded as having been committed on the spur of the moment, for all that it was not long in gestation. There was nothing in the conduct of the victim at the least provocative at the time that the offender decided to get his baseball bat to attack him. I accept that the victim may have acted badly towards the offender and the other residents of the boarding house, which excited the offender’s anger. But the evidence of its extent is exiguous and nothing in the agreed statement of facts or, for that matter, in Ms Johnson’s report remotely justifies the offender’s actions. There is little scope for the application of s21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 in mitigation.

24. It seems to me that I am bound by the way in which the Crown has particularised to its case in respect of the intentional element of the offence. So far as the victim was concerned it is apparent that he believed the offender intended to kill him or, at least, cause serious injury. Nevertheless, although the victim was justifiably terrified, as was plainly the offender’s intention, assessment of the objective seriousness of the offence must reflect that the intention of the offender in arming himself with a baseball bat was to commit only a common assault as distinct from a serious injury. This places the offence well into the lower range of seriousness for offences covered by this section.

25. So far as the offence under s112(1)(a) is concerned, the agreed facts refer only to the fire being lit on the lounge in the victim’s room and there is no other evidence as to damage. I accept that it was the offender’s intention only to damage the victim’s room and not to cause other injury either to buildings or persons. At the same time, it is self-evident that lighting fires in premises is fraught with the risk of catastrophic consequences and must be regarded as objectivity serious. There is no evidence, however, as to the actual risk of more serious damage than was, in the result, caused and I do not think it is appropriate to speculate that there was a likelihood that the consequences of lighting the fire may have been more grave than those which actually occurred. The objective seriousness of this offence must therefore lie in the common sense appreciation of the danger entailed by the commission of an offence of this kind. The evidence does not permit me to conclude adversely to the offender that there was, in fact, a serious risk of significant damage or injury to property or persons. Again, I consider this offence to lie towards the lower end of objective seriousness. It is submitted by the prosecution that the offence was committed without regard to public safety, vide s 21A(2)(i). Having regard to the location of the fire and the lack of any evidence of damage except to the lounge, I am unable to conclude beyond reasonable doubt that the offender had no regard to public safety; indeed, it seems to me that he likely considered the risk to the public as negligible, if he considered it at all.

22. It is an aggravating feature of the offences that they were committed at the home of the victim: s21A(2)(eb). In this respect, that the first offence occurred in the communal bathroom is immaterial. The victim was entitled to feel safe in those parts of the house which he was entitled to use. The offender’s prior convictions also constitute an aggravating feature, particularly given their violent character: s21A(2)(d). However, I accept the submission made by the prosecution that, although the offender’s prior convictions are relevant to the issue of specific deterrence and justify denying him any leniency, no additional adverse weight should be given to them.

23. The Form 1 offence is, in reality, part of the violent approach made by the offender to the victim in the bathroom. It comprises the initial thuds on the door and the offender’s threats to kill the victim. This is closely related to the facts giving rise to the first charge but differs in that it reflects actual intimidation whilst the first charge (in respect of which the Form 1 offence will be taken into account) focuses on physical possession of the baseball bat with the specified intention. It informs the weight that needs to be given to the sentencing function of personal deterrence and retribution and, when taken into account, increases to some extent (though slightly) the sentence that would otherwise be imposed for the substantive offence.

24. In mitigation, I note that the harm caused by the offences was not substantial (see s21A(3)(a)), although this factor has been already taken into account in assessing objective seriousness and should not be counted again under this head.

25. I am not satisfied that the offender is remorseful in any sense that mitigates the seriousness of the offences. The likelihood of rehabilitation is difficult to assess, since it seems to require a significant change in the offender’s powers of self control, combined with an adjustment of what appear to be strongly held beliefs of religious self-justification.

Prior custody

30. The offender was arrested on 25 September 2019 and has been in custody on remand since that date. It is evident that, in the circumstances, any sentence that I impose should commence on 25 September 2019.

Sentence

31. The subjective features of the offender do not provide a basis for affording leniency. The sentence must reflect a significant degree of personal deterrence to bring home to him the condemnatory response of the criminal law to the commission of offences of violence which, to a substantial degree, he thinks he is morally justified in committing. Although the two offences were, in substance, different aspects of the one attack on the victim, they differ in time, place and inherent character. Whilst each is objectively at the lower end of objective seriousness, their differing culpability has a cumulative effect. Some accumulation is necessary, whilst bearing in mind the need to ensure that the ultimate sentencing outcome must not exceed appropriate punishment for the overall criminality of the offences.

32. It is in the public interest that the offender be encouraged by professional guidance to engage in counselling along the lines proposed by Ms Johnson, though I am sceptical that it can be made available to him and real doubt about its effectiveness. I am not satisfied that there are special circumstances that would justify a variation of the statutory formula in s 44 of the Crimes (Sentencing Procedure) Act 1999.

33. I intend to sentence the offender to an aggregate sentence for the two offences for which he is before the Court. In respect of the first charge, taking into account the Form 1 offence, the indicative sentence I would have imposed is 18 months imprisonment, reduced to 13 months (rounded down) after allowing a discount of 25%. In respect of the second charge, the indicative sentence I would have imposed is 18 months imprisonment, reduced to 13 months (rounded down) after allowing a discount of 25%, accumulated on the former sentence by three months.

34. The aggregate head sentence is therefore 16 months imprisonment. The non-parole period is 12 months. The sentence is to commence on 25 September 2019. I direct that the offender is to be released on parole at the expiration of the non-parole period on 24 September 2020.

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Decision last updated: 14 August 2020