The State of Western Australia v Potifala
[2020] WADC 134
•16 OCTOBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- POTIFALA [2020] WADC 134
CORAM: PRIOR DCJ
HEARD: 18 SEPTEMBER 2020
DELIVERED : 16 OCTOBER 2020
FILE NO/S: IND 1913 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SAM POTIFALA
Catchwords:
Sentencing - Trial of issues - Unlawful grievous bodily harm - Amount of times the offender punched the victim - Whether the offender punched the victim whilst the victim was on the ground - Prosecution required to prove aggravating factors beyond reasonable doubt
Legislation:
Sentencing Act 1995 (WA), s 15
Result:
State has proved the aggravating factor that the offender punched
the victim a total of four times
State has proved the aggravating factor that the offender punched
the victim twice whilst the victim was on the ground
Representation:
Counsel:
| The State of Western Australia | : | Mr J Keogh |
| Accused | : | Ms F Cain |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Cathal Smith Legal Pty Ltd |
Case(s) referred to in decision(s):
Law v The State of Western Australia [2009] WASCA 193
PRIOR DCJ:
Introduction
On 16 September 2019 Sam Potifala entered a plea of guilty to the count contained on indictment 1913 of 2018 dated 20 December 2018 that on 15 December 2018 at Cloverdale he unlawfully did grievous bodily harm to Thomas Norman Hindmarsh.
Once the plea of guilty was entered by Mr Potifala, and a conviction was recorded, counsel for Mr Potifala advised there was a dispute with respect to the facts to be found for sentencing.
The factual disputes between the prosecution and defence was as to how many times Mr Potifala punched Mr Hindmarsh and whether Mr Hindmarsh was punched by Mr Potifala whilst Mr Hindmarsh was on the ground.
I advised counsel that these factual disputes unless resolved could have an impact on Mr Potifala's sentence.
Facts in dispute
Mr Potifala's position is that he punched Mr Hindmarsh a total of three times - twice whilst Mr Hindmarsh was facing him and a third time as Mr Hindmarsh was running away from him. Mr Potifala states that all the acts of punching occurred while they were out the front of Mr Hindmarsh's house in the driveway at the Cloverdale address when Mr Hindmarsh was on his feet. Mr Potifala denies punching Mr Hindmarsh whilst he was on the ground.
In the submissions for Mr Potifala dated 10 March 2020, it is submitted the first punch occurred when Mr Potifala came back to confront Mr Hindmarsh about sarcastic comments Mr Hindmarsh made to him. Mr Potifala jumped off his pushbike and moved quickly up to Mr Hindmarsh, who was on the kerb in the front driveway. At that time, Mr Hindmarsh shoved his face into Mr Potifala's personal space so that Mr Potifala had to lean his head backwards and turn his face so they were not touching each other. Mr Potifala said 'are you serious'. Mr Hindmarsh's body was rigid and was leaning into Mr Potifala with his hands at his side. This occurred at the front verge of Mr Hindmarsh's house. Mr Potifala then punched Mr Hindmarsh twice. These punches were to both sides of Mr Hindmarsh's face.
Mr Potifala denies punching Mr Hindmarsh after he had fallen to the ground.
Mr Potifala submits that there are other background factual matters that were in dispute leading up to the punches occurring, but these are not significant for sentencing purposes.
Facts not in dispute
It was accepted by both parties that the offence occurred around the middle of the day on 15 December 2018 out the front of Mr Hindmarsh's house.
There was no dispute that Mr Potifala knew Mr Hindmarsh suffered from a disability that affected his physical strength, but he did not know Mr Hindmarsh had cerebral palsy and epilepsy.
The law
In Law v The State of Western Australia [2009] WASCA 193 Buss JA at [25] - [34] summarised the relevant legal principles that apply in relation to how a sentencing judge should deal with a matter when there was a dispute on the factual basis on which an offender should be sentenced.
The factual issues in dispute are aggravating factors, therefore it is for the prosecution to prove the facts relating to these issues beyond reasonable doubt. Both counsel accepted this.
The evidence
The State called two witnesses. Mr Hindmarsh and Graham Paul, a neighbour who observed some of the offence being committed and heard some noises.
Mr Potifala gave evidence and was the only defence witness.
Thomas Hindmarsh
Mr Hindmarsh gave evidence that he has lived at the Cloverdale address all his life.
Mr Hindmarsh said he first met Mr Potifala 12 - 13 years before the incident through a mutual friend. At the time of the incident both of them were friends.
On 15 December 2016 at 7.45 am Mr Potifala arrived at Mr Hindmarsh's house. Mr Hindmarsh then took his two children to school.
At 9.30 am Mr Hindmarsh and Mr Potifala went to a bottle shop on pushbikes and bought a 10-pack of Jim Beam bourbon and cola pre‑mixed cans. Mr Hindmarsh purchased the drinks. Mr Potifala asked him for $2,000 for his daughter's Christmas present. Mr Hindmarsh refused to give Mr Potifala the money as he already owed him $500.
At 10.15 am they both went to Mr Hindmarsh's girlfriend's house. She lived four houses down from Mr Hindmarsh. Mr Potifala and Mr Hindmarsh both had two drinks of the pre-mixed cans.
At 11.30 am Mr Hindmarsh and Mr Potifala went to Mr Hindmarsh's house, picked up some party pies and sausage rolls and dropped them off at Mr Hindmarsh's son's school. They then went back to Mr Hindmarsh's girlfriend's house and had two more drinks. They then had an argument. Mr Hindmarsh said Mr Potifala was angry.
They then both went back to Mr Hindmarsh's house. Mr Potifala was on his pushbike. Mr Hindmarsh was walking his pushbike.
By 12.30 pm Mr Hindmarsh said he and Mr Potifala both had consumed a total of four drinks of alcohol.
On the way to Mr Hindmarsh's house, Mr Potifala and Mr Hindmarsh were arguing. Mr Potifala continued to get angry. They stopped about three times on the way. The conversation got heated when they got to the front of Mr Hindmarsh's house.
Mr Hindmarsh said he walked his pushbike to the end of his driveway, put his pushbike down and walked back to Mr Potifala, who was a metre away from driveway. Mr Hindmarsh and Mr Potifala were then about 2 ½ metres apart.
Mr Hindmarsh identified in exhibits 1.1 - 1.4 the location of his house where he and Mr Potifala were when the offending started. He also identified his next door neighbour Graham Paul's house.
Mr Hindmarsh gave evidence at this location he said to Mr Potifala 'everyone fucks you around, everyone treats you like dogs, just get the fuck over it'.
Mr Potifala then jumped off his pushbike and punched Mr Hindmarsh with his right hand with a 'haymaker' punch that came from half a metre behind his body. He demonstrated in his evidence how the punch was thrown. He hit the left side of Mr Hindmarsh's jaw with his right fist. Mr Hindmarsh denied in cross-examination he was face to face with Mr Potifala when this punch was struck.
Mr Hindmarsh said he was not expecting the punch. When Mr Potifala punched him said to Mr Potifala 'What was that fucking for?' Mr Potifala said 'It was you'.
Mr Hindmarsh said loudly 'fuck off cunt' two to three times to Mr Potifala and 'Just go home'.
Mr Potifala then jumped on his pushbike and rode off up about three houses, just around the corner to house number 21.
The third time Mr Hindmarsh said 'fuck off cunt', Mr Potifala was at number 23 of the Cloverdale street. Mr Potifala turned around and came back on his pushbike as fast as he could.
Mr Potifala jumped off his pushbike out front of the next door neighbour's house and ran at Mr Hindmarsh. Mr Hindmarsh had his back to Mr Potifala. He was walking down his driveway.
Mr Potifala started running towards Mr Hindmarsh and said 'you called me sweetheart?'. Mr Hindmarsh then said 'no I just said fuck off cunt'.
Mr Potifala then hit Mr Hindmarsh from behind with his right hand to the right side of his jaw. Mr Hindmarsh described the force of the punch as 'like a hundred miles an hour'.
Mr Hindmarsh gave evidence that Mr Potifala then pushed him in his back, face first into the ground. Mr Hindmarsh felt his big toenail on his left foot rip off on the concrete. He was wearing thongs.
Mr Hindmarsh rolled onto his back and was looking up. Mr Potifala was then standing over the top of him. He described Mr Potifala as really angry and pissed off.
Mr Hindmarsh was bleeding out of his mouth and ears. He lifted his head 10 - 12 cm off ground so he would not choke on his own blood.
Mr Potifala then punched Mr Hindmarsh in the chin with his right hand. He felt his chin shatter.
Mr Hindmarsh's head bounced back onto the concrete. He felt his whole chin hanging down. He heard one to two loud cracks at the same time.
Mr Hindmarsh's head was then turned to the left towards the front door of his house. Mr Potifala then punched Mr Hindmarsh again on the right hand side of his face. Mr Hindmarsh lost all his hearing at that point.
Mr Hindmarsh said to Mr Potifala 'How would you like me doing that that you?'. Mr Hindmarsh said Mr Potifala looked at him and then got back on his pushbike and left.
Mr Hindmarsh's mother came out of the house and said 'Sam, what have you done?'.
Mr Hindmarsh got on his hands and knees. He could not stand up. When he stood up his jaw was 'flopping around'.
Mr Hindmarsh's neighbour Graham Paul then arrived.
Mr Hindmarsh lost his balance. He could not stand up straight.
Mr Hindmarsh identified in exhibits 1.3 and 1.4 where he was when Mr Potifala punched him the first and second time. He then indicated where he was on the ground when Mr Potifala punched him in the face the third and fourth time.
Mr Hindmarsh said there was no cars parked out the front of the house in the driveway.
As a result of the assault Mr Hindmarsh had surgery on his jaw. He had three plates and 12 screws inserted to his jaw.
Mr Hindmarsh estimated the whole incident lasted five to six minutes from the first punch.
Mr Hindmarsh stated there were only two incidents at the front of his house. Mr Potifala left on his pushbike and came back on a second occasion.
Graham Paul
Mr Paul lives at number 13 of the Cloverdale street. He identified his house in exhibit 1.1. There was a vacant block between his house and the Hindmarsh house.
On 15 December 2016 in the afternoon, he was working on the footing of his front gate in the driveway. He heard voices, and then a heated argument. He had a clear vision of the street.
Mr Paul saw two men standing outside number 17 of the Cloverdale street. One man was Mr Hindmarsh, who he knew. He had seen the other man before but did not know him. Mr Paul described him as tall, olive skinned, a big person who was a head taller than Mr Hindmarsh about six foot or six foot one.
Mr Paul decided to keep an eye on what was going on. He was concerned about the heated discussion. He identified where he was watching the incident from on the photographic exhibits. He had a clear unobstructed view from 25 - 30 metres. It was a bright sunny day.
Mr Paul noticed a pushbike that he believed belonged to the other man.
Mr Hindmarsh and the other man were standing about a metre away from each other. They looked aggravated in their discussion.
The other man was leaning forward towards Mr Hindmarsh. Mr Paul could not hear exactly what they said.
The conversation stopped and the other man got on his pushbike and rode off.
Mr Hindmarsh was standing on his driveway and yelled out 'See you later mate, I love ya'. He sounded forlorn and looked upset.
The other man stopped on his pushbike. He turned around and yelled to Mr Hindmarsh 'what did you say'. He was 15 - 20 metres away from Mr Hindmarsh when he said this.
The other man then rode back towards Mr Hindmarsh in a hurry.
As the other man rode towards Mr Hindmarsh, Mr Paul gave evidence the man seemed to dismount his pushbike in one sort of momentum, leap and the pushbike went to one side. He then came forward and as he propelled himself forward, he lifted his right arm to shoulder height and punched Mr Hindmarsh to the left side of his face. Mr Paul heard a loud crack. He demonstrated how the punch was thrown.
Mr Hindmarsh stumbled back from the impact and went behind the fence on the driveway. Mr Paul then lost vision of both men but saw the man going forward towards Mr Hindmarsh.
Mr Paul then heard noises like more hitting. Hitting and thumping noises. He heard three to four impact noises and then heard Mr Hindmarsh yelling out 'I'm done, I'm done, I've had enough'.
Mr Paul saw the man come out of the driveway, get on his pushbike and ride off.
Mr Paul estimated that it was about three minutes that the two men were out of his view.
Mr Paul stood up and walked towards house. When he arrived in the front yard he saw Mr Hindmarsh on the ground bleeding profusely from the face. He was bent over and blood was pouring out of his head and out of his nose. He identified where Mr Hindmarsh was on exhibit 1.4.
Mr Hindmarsh was unsteady. Mr Paul held him for a second.
Mr Hindmarsh's mother came out of the house screaming. Mr Paul said to her 'Well he needs to be cleaned up and we need to get him to a hospital'.
In cross-examination Mr Paul said he watched the whole incident and it all happened fairly quickly but he knew what happened. He said he was watching because he was concerned.
Mr Paul did not see Mr Hindmarsh come towards the man before the man punched him the first time.
Mr Paul said that there was no vehicle in the driveway of number 17 of the Cloverdale street.
Mr Paul said that he never spoke to Mr Hindmarsh or his mother after the incident about the incident.
Mr Paul confirmed in cross-examination that he heard three to four impact noises when the man and Mr Hindmarsh were behind the driveway. He said he had seen physical altercations before when he had heard those noises associated with punches. He said he had also heard those noises before, with boxing rings or on TV.
Sam Potifala
In December 2016, Mr Potifala was living in Cloverdale about a five minute pushbike ride to Mr Hindmarsh's house.
Mr Potifala went around to Mr Hindmarsh's house shortly before 8.00 am. He and Mr Hindmarsh went to a bottleshop, Mr Hindmarsh's girlfriend's house and then Mr Hindmarsh's child's school.
Mr Potifala said that in the morning he had 6 - 7 drinks. Mr Hindmarsh had 10 - 11 drinks.
Mr Potifala said he had a verbal argument with Mr Hindmarsh out the front of Mr Hindmarsh's house. He said Mr Hindmarsh was being sarcastic and Mr Potifala started to get agitated.
Mr Hindmarsh said 'Everyone fucks everyone around and that's just the way it fucking is'.
Mr Potifala rode off on his pushbike. He indicated in exhibit 2 the direction he rode to. Mr Hindmarsh then yelled 'Fuck off princess. Harden the fuck up'. Mr Potifala then rode back to ask Mr Hindmarsh what he said. He said to Mr Hindmarsh:
You've got to stop playing games, you know. You could easily see that I'm agitated and I don't like it that you find it comical.
Mr Potifala gave evidence he then rode off again and the same thing happened. Mr Potifala then rode back again towards Mr Hindmarsh a second time. There was another discussion and Mr Potifala rode off again.
Mr Potifala said he then rode back towards Mr Hindmarsh a third time with a little gusto after Mr Hindmarsh said something. He said he was agitated. Mr Potifala jumped off his pushbike onto the pavement and stepped towards Mr Hindmarsh.
Mr Hindmarsh stepped towards Mr Potifala and put his head up into Mr Potifala's face. Mr Potifala said 'Are you serious?' and Mr Hindmarsh tried to give him a shove.
Mr Potifala was leaning back. He took a step back and made a left uppercut punch which connected with the right side of Mr Hindmarsh's face. Mr Potifala said he then punched Mr Hindmarsh to the left side of the face with his right hand. The two punches occurred in a split second or two. They happened straight after each other. He described them as a 'flurry of punches'.
Mr Hindmarsh seemed stunned after the second punch. When Mr Hindmarsh turned to run, Mr Potifala said he struck him again a third time just before Mr Hindmarsh entered his driveway.
Mr Potifala identified in the photograph exhibit 1.3 as 'the sand area' where the first two punches occurred. The third punch he said occurred just inside the boundary fence.
Mr Potifala gave evidence that Mr Hindmarsh's uncle's ute was parked in the driveway. He was adamant about this evidence.
Mr Hindmarsh then went through the gap between the car and the brick post. He tripped on the pavement and fell ending up on his back under the awning near the front door.
Mr Potifala said when he came over to Mr Hindmarsh he was looking up at him and holding his face. Blood was spurting out through his fingers. Mr Hindmarsh was saying to him 'What did I do?'.
Mr Hindmarsh's mother then came out the front door and said 'Oh, Sam what have you done?'. Mr Potifala said to her 'Well ask you son'. Mr Potifala then left on his pushbike.
In cross-examination, Mr Potifala said that on the third occasion he went back to Mr Hindmarsh, he got off his pushbike quickly to confront him but Mr Hindmarsh stepped in. Mr Portifala agreed he was angry.
Mr Potifala said the first punch was a reaction to the shove by Mr Hindmarsh.
Mr Potifala said the third punch was struck when Mr Hindmarsh was turning but his back was not facing him. He agreed he hit Mr Hindmarsh as he turned to run.
In cross-examination, Mr Potifala denied punching Mr Hindmarsh while he had his back towards him or while he was on the ground.
Mr Potifala maintained in cross-examination that he rode off three times from Mr Hindmarsh's house.
Mr Potifala said he followed Mr Hindmarsh behind into the driveway to check up on him. He was there at that location for less than a minute.
Mr Potifala denied the whole incident happened in five to six minutes. He stated it only lasted under two minutes. Mr Potifala stated he punched Mr Hindmarsh three times.
Mr Potifala agreed he did not need to hit Mr Hindmarsh.
Analysis
There are a number of inconsistencies between the evidence of three witnesses. These inconsistencies relate to the following significant factual issues:
1.How many times did Mr Potifala ride back to Mr Hindmarsh?
2.What did Mr Hindmarsh do before the first punch was struck by Mr Potifala?
3.Was there a motor vehicle parked in the driveway of Mr Hindmarsh's house?
4.What caused Mr Hindmarsh to end up on the ground?
5.Did Mr Potifala punch Mr Hindmarsh whilst he was lying on the ground?
6.How many times in total did Mr Potifala punch Mr Hindmarsh?
Some of these inconsistences can be explained due to the fact Mr Paul observed and listened to the events from a distance of 20 ‑ 25 metres, Mr Hindmarsh and Mr Potifala had consumed alcohol and Mr Hindmarsh sustained a head injury.
Some of the inconsistences do impact on the credibility of witnesses but others are minor in nature.
I find Mr Hindmarsh a confident, truthful and reliable witness. He was unshaken in cross-examination. His account of the events of 15 December 2018 was consistent throughout his evidence.
I find the eye witness, the neighbour Mr Paul an independent, credible and reliable witness. He was continually watching the behaviour of Mr Hindmarsh and Mr Potifala when they were in the front area of Mr Hindmarsh's house until they went out of his view because they went into the front yard area of the house. He then listened to what occurred when he could not see the two men. He was watching and listening because he was concerned at what was going on between the two men.
Based on the independent evidence of Mr Paul, I am satisfied beyond reasonable doubt that when Mr Potifala rode back to Mr Hindmarsh on his pushbike on the first occasion, he punched Mr Hindmarsh to the left side of his face as soon as he got of his pushbike.
I am satisfied on the evidence of both Mr Hindmarsh and Mr Potifala that Mr Potifala then punched Mr Hindmarsh to the right side of his face. I am satisfied the two punches occurred in close proximity in time and not between Mr Potifala riding away and coming back. I am unable to be satisfied Mr Potifala hit Mr Hindmarsh from behind. I am satisfied Mr Hindmarsh was turning to walk into the front yard.
Mr Paul's evidence although not identical to Mr Hindmarsh's evidence is more consistent with the evidence of Mr Hindmarsh than Mr Potifala. In particular, when Mr Paul described what he saw and heard of the physical altercations between Mr Hindmarsh and Mr Potifala.
On the evidence of Mr Hindmarsh and Mr Paul, I am satisfied beyond reasonable doubt there was no motor vehicle at Mr Hindmarsh's house when the offence occurred. The fact that Mr Potifala was adamant that there was a motor vehicle at Mr Hindmarsh's house results in me questioning significantly the reliability and accuracy of Mr Potifala's evidence.
Given Mr Potifala's concession of his continuing anger towards Mr Hindmarsh out the front of Mr Hindmarsh's house and that he followed Mr Hindmarsh into the front yard, when I consider this with the general consistencies in the evidence of Mr Hindmarsh and what Mr Paul saw and heard, I am satisfied beyond reasonable doubt Mr Potifala punched Mr Hindmarsh in the face twice whilst he was lying on the ground. I am also satisfied beyond reasonable doubt that before these two punches were thrown by Mr Potifala, he had pushed Mr Hindmarsh to the ground as he was retreating into his front yard and Mr Hindmarsh had rolled over to face upwards before the first of the two punches were thrown.
Conclusion
In accordance with my findings of facts made on the disputed factual issues I will sentence Mr Potifala on the following basis:
1.Mr Potifala punched Mr Hindmarsh twice to the face out the front of Mr Hindmarsh's house. The punches were to each side of Mr Hindmarsh's jaw. The punches were with Mr Potifala's right fist.
2.When Mr Potifala punched Mr Hindmarsh the first time to the jaw, Mr Hindmarsh was not leaning towards Mr Potifala and he had his hands down his side. There was therefore no physical provocative behaviour by Mr Hinmarsh.
3.Mr Potifala pushed Mr Hindmarsh in the back face first to the ground when they were both inside the front yard area of Mr Hindmarsh's house.
4.Mr Hindmarsh rolled over when he was lying on the ground. Then Mr Potifala punched Mr Hindmarsh to his chin and the right hand side of his face.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior16 OCTOBER 2020
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