Usaia v The King

[2023] NSWCCA 57

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Usaia v R [2023] NSWCCA 57

Hearing dates:

17 February 2023

Decision date:

24 March 2023

Before:

Beech-Jones CJ at CL at [1];
Button J at [2];
McNaughton J at [45]

Decision:

(1) Leave to appeal against sentence granted.

(2) Appeal against sentence allowed, and aggregate sentence imposed at first instance quashed.

(3) In substitution, an aggregate head sentence of imprisonment for 7 years is imposed, to commence on 3 November 2019 and expire on 2 November 2026.

(4) An aggregate non-parole period of 3 years 6 months is imposed, to expire on 2 May 2023.

(5) The first date upon which the applicant is eligible for possible release to parole is 2 May 2023.

Catchwords:

CRIME — appeals — appeal against sentence —affray at King’s Cross nightclub – assault of police officers in execution of duty – actual and grievous bodily harm inflicted – applicant convicted of multiple counts – standard non-parole periods taken into account with regard to certificate offences dealt with notionally in Local Court – material error established – appeal allowed – resentenced

Legislation Cited:

Criminal Procedure Act 1986 (NSW) ss 166, 168

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 54D

Cases Cited:

BP v R [2010] NSWCCA 159

Category:

Principal judgment

Parties:

Tuni Usaia (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Paingakulam (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/328817

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 January 2022

Before:

Shead SC DCJ

File Number(s):

2019/00328817

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Tuni Usaia (the applicant) pleaded guilty to numerous violent offences committed against police officers outside the Flamingo Lounge, a nightclub in King’s Cross, on 19 October 2019. On 21 January 2021, Shead SC DCJ sentenced the applicant. While two offences were before her Honour substantively, others were listed for consideration on a Form 1 (see s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW)), or before her Honour on a certificate (pursuant to s 166 of the Criminal Procedure Act 1986 (NSW)). An aggregate term of 8 years imprisonment was ultimately imposed, with a non-parole period of 4 years.

Her Honour’s reasoning, adopting a legal slip in the Crown’s written submissions on sentence, referred to the certificate offences possessing standard non-parole periods. However, as these offences were being dealt with notionally in the Local Court, no standard non-parole periods should have been applied.

The Court held: The mistaken reflection upon the standard non-parole periods was a material error requiring consideration of resentence.

It was found that, when comparing the head aggregate sentence with the indicative sentences imposed for the substantive offences, one could infer that the certificate offences were significantly reflected in the aggregate term imposed. Further, the standard non-parole periods were explicitly mentioned in her Honour’s judgment, albeit whilst explaining why her Honour would be deviating from them, and non-parole periods were ultimately imposed for each indicative sentence. A material legal error was consequently found. The standard non-parole periods were an irrelevant consideration by her Honour, and subsequently created a real risk that reflecting on them might have, even unconsciously, influenced the applicant’s sentence.

The sentenced imposed at first instance was quashed. The applicant was resentenced to a somewhat shorter aggregate head sentence and aggregate non-parole period.

JUDGMENT

1. BEECH-JONES CJ AT CL: I agree with Button J.

2. BUTTON J:

Error established

Judge Shead SC sentenced Mr Tuni Usaia (the applicant) on 21 January 2022 with regard to a large number of offences. Some of them were before her Honour substantively, some were on a Form 1 (see s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”)), and some of them were before her Honour on a certificate (see s 166 of the Criminal Procedure Act 1986 (NSW) (“the CPA”)).

3. All of the offences were to do with serious violence committed by the applicant against a number of police officers outside a nightclub in King’s Cross on the evening of Saturday, 19 October 2019. Ultimately, an aggregate head sentence of imprisonment for 8 years was imposed, with an aggregate non-parole period of 4 years.

4. Regrettably, the Crown’s written submissions on sentence contained a legal slip, in that they referred to the certificate offences possessing standard non-parole periods. In fact, pursuant to the combined effect of s 54D of the CSPA and s 168 of the CPA, that was not the case: because they were being dealt with notionally in the Local Court, no standard non-parole periods applied to the certificate offences.

5. Regrettably again, the advocate appearing for the applicant at first instance did not correct that slip.

6. Three things demonstrate, in my opinion, not only that the slip was replicated by her Honour, but also that it was a material error.

7. First, at [211] of the remarks on sentence, her Honour specifically referred to the inapplicable standard non-parole periods, albeit whilst explaining why there would be significant deviation from them.

8. Secondly, her Honour provided non-parole periods within the indicative sentences for the certificate offences, which were, in truth, unnecessary.

9. Thirdly, as the sentencing diagram of the outcome at first instance attached to this judgment shows, when one compares the aggregate head sentence with the head sentences for the two substantive offences, one can see that, by way of (undoubtedly imprecise) reflection upon “notional cumulation”, the certificate offences played a significant role in the ultimate outcome.

10. The Crown submitted in this Court that there can be no suggestion that her Honour inappropriately gave undue weight to the standard non-parole periods in question or approached them too inflexibly. But the simple fact is that they should not have been reflected upon at all: see, with regard to a similar error in the context of an offender aged under 18 years, BP v R [2010] NSWCCA 159. Having been wrongly referred to, they may have affected the sentencing discretion of her Honour, even unconsciously.

11. Contrary to the Crown’s submission about the topic in this Court, I consider that the first proposed ground of appeal against sentence – “that the sentencing judge erred in having regard to the standard non-parole period when sentencing the offender in relation to Sequences 3, 5, 6 & 10 (the related offences)” – must be upheld.

Other grounds

12. In the circumstances, the two other grounds proposed by the applicant can be dealt with quickly. All that was said in support of ground 3 – an assertion that the aggregate sentence is manifestly excessive – will be taken into account on resentence, but the ground itself does not require determination.

13. As for ground 2 – “Her Honour erred in failing to give less weight to specific deterrence due to the appellant’s cognitive disability”- if it is necessary to deal with it, I would dismiss it for the following reasons. The remarks on sentence recount explicitly the defence submission that “the offender’s cognitive impairments limit the weight that should be placed on specific deterrence and the offender’s ability to grapple with the concept would be blunted” (62 AB). Shortly thereafter, in the context of determining the role of the mental conditions of the applicant in sentencing, her Honour said, “Based on all of the evidence before me, I accept the submissions advanced on behalf of the offender” (63 AB). Whether her Honour explicitly referred to specific deterrence thereafter is neither here nor there, in my opinion: the fact is that the defence submissions about the role of the mental conditions of the applicant were accepted by the sentencing judge. In other words, the ground must fail because the sentencing judge did precisely as she was asked, and the failure complained of in the ground did not occur.

Resentence

14. Because the remarks on sentence of Judge Shead are comprehensive, and because this Court was not asked on resentence to make different findings of from those of her Honour (except for one matter, which I discuss below), I shall be more concise than at first instance. But that brevity should not be understood as being in any sense dismissive of the gravity of the matter.

Objective features

15. The offences in summary constituted an explosion of violence that was short but ferocious, and had significant consequences in terms of physical and psychological injuries to its victims.

Sequence 8 – affray, substantive (maximum penalty: 10 years’ imprisonment)

16. On the evening in question, the applicant was with a group of friends at a nightclub in King’s Cross. He is a large, tall man who was then aged in his mid-thirties. The group, including the applicant, became aggressive and threatened the staff of the nightclub. The licensee and security staff tried to calm things down, without success. Ultimately, the group was asked to leave. Security staff began to push members of the group down the stairs of the nightclub and out onto the ground floor forecourt. By that stage people were yelling and screaming at each other. Requests by the security staff that the group leave the premises entirely were ignored.

Sequence 10 – assault officer in execution of duty causing actual bodily harm, certificate (maximum penalty: 7 years’ imprisonment, but jurisdictional limit in Local Court: 2 years’ imprisonment)

17. Two police officers arrived in a police vehicle. The applicant lunged forward and shoved Constable Concannon-Chavez, applying both of his hands to her chest with significant force. She lost her balance and fell to the ground. She suffered a large bruise on the back of her upper right arm, and some grazes and cuts to both elbows.

Sequence 5 – assault officer in execution of duty causing actual bodily harm, certificate (maximum penalty: 7 years’ imprisonment, but jurisdictional limit in Local Court: 2 years’ imprisonment)

18. The applicant then rushed towards the other police officer from the vehicle, Constable Hall, who tried to restrain him. The applicant punched the officer several times to the face, dazing him and causing him to stumble. The physical result was a dislocated jaw, which corrected itself. At the same time, other members of the group became involved in the developing melee. The interactions moved to the front of the nightclub. In the meantime, urgent police assistance was sought, and a number of police cars arrived.

Sequence 4 – assault police officer in execution of duty causing actual bodily harm, form 1 (maximum penalty: 7 years’ imprisonment)

19. Another member of that group shoulder charged Constable Smith. The applicant pushed Constable Kilby with force, using both hands. Another member of the group pushed Constable Sly, with the result that both his taser and body worn camera fell to the ground. When Constable Smith tried to assist Constable Sly, the applicant punched Constable Smith several times to the face with a closed fist.

20. At a later stage of the chaotic interaction, when the applicant was continuously throwing punches, Constable Smith suffered a broken nose and an abrasion to the cornea of his right eye as a result of misdirected capsicum spray. After the melee subsided, Constable Smith was bleeding, had bloodshot eyes, and was concussed, with subsequent headaches for a number of days.

Sequence 6 – assault police officer in execution of duty causing actual bodily harm, certificate (maximum penalty: 7 years’ imprisonment, but jurisdictional limit in Local Court: 2 years’ imprisonment)

21. By this time several people, including security staff and police officers, were trying to gain control of the applicant. He punched Constable Sly to the face, causing him to fall to the ground. There Constable Sly was also punched several times to the face and the back of his head. As a result, he suffered bruising and swelling to his head on the right side, and cuts and bruises to his arms and legs.

Sequence 3 – assault police officer in execution of duty causing actual bodily harm, certificate (maximum penalty: 7 years’ imprisonment, but jurisdictional limit in Local Court: 2 years’ imprisonment)

22. The applicant then shoulder-charged in the direction of Constable Kilby, who succeeded in grabbing the offender by his neck and right arm. The applicant responded by punching that officer with both fists. Constable Kilby fell backwards into a pole, and thereafter to the ground. The applicant climbed on top of the prone officer and straddled him, punching him to the head and face repeatedly with great force, and abusing him verbally. The officer suffered a concussion, dark bruising on his face, bruising to his arms, soft tissue injuries to his jaw and spine, and a cut on his chin.

Sequence 2 – cause grievous bodily harm to a police officer on duty, reckless as to actual bodily harm, substantive (maximum penalty: 12 years’ imprisonment, SNPP: 5 years)

23. By the end of the incident, around eight police officers were attempting to restrain the applicant in order to arrest him. Significant force was required to bring him under control and apply handcuffs to him. Sergeant Tyson was one of those holding the applicant as an effort was made to move him towards the rear of a caged police truck. The applicant was resisting violently, including by twisting his body and thrashing around. During that process, Sergeant Tyson felt pain in his right elbow.

24. It was later found that the police officer had bruising on his arm and elbow, a ruptured tendon, and a fracture to his elbow. An operation needed to be conducted to repair the tendon, whereby the bone was drilled and two plastic “anchors” were installed. The prospect is of reduced function to the right arm of the police officer for the rest of his life.

Sequence 9 – assault officer in execution of duty, Form 1 (maximum penalty: 7 years’ imprisonment)

25. Finally, once he had been placed inside the caged truck, the applicant placed his foot on the edge of the truck and pushed back against it, with the result that his body came into contact with Constable Woodbury. He also kicked towards her.

26. Quite apart from the above concise written description of the offending, I have watched the relevant CCTV footage myself in Chambers more than once. Although hard to discern in its specifics, it shows a frightening and chaotic episode of serious violence inflicted upon a large number of people, albeit over a very short period of time.

27. Victim impact statements placed before the sentencing judge showed the following. The immediate physical injuries that I have summarised above often featured longer term physical consequences. And most, if not all, of the physically injured police officers suffered psychological injuries, some of them serious. All of them were adversely affected in their personal and professional lives. In particular, entirely as one would expect, Sergeant Tyson significantly suffered, both physically and emotionally, from his injury. The post-surgery recovery period was extremely painful, and often isolating. He described being confined to his bed due to excessive and persistent swelling in his injured arm, and suffering from significant amount of pain, largely unrelieved by prescribed medication. Sergeant Tyson was unable to carry his two-year-old child, nor assist in his usual household duties. He was forced to rely on his wife to take on more responsibilities around the house and transport him to medical appointments or other events. Even twelve months later, Sergeant Tyson was unable to return to his pre-injury responsibilities as a police officer, and was forced into restricted non-operational duties.

28. Separately, I do not believe that this exercise in resentencing requires a detailed analysis of the objective gravity of each offence, let alone an attempt to place any of them at a particular spot on a continuous spectrum. Still less is there any utility in resolving the written submission maintained by the applicant that, contrary to the finding at first instance, the objective seriousness of sequence 2 (the offence involving grievous bodily harm) “falls approximately half way between the low end of objective seriousness and the middle of the range for offences of this type”. In my opinion, it is sufficient to state that this offending, whether thought of as made up of individual offences or as one continuous burst of criminality, was undoubtedly serious, and consequential.

Subjective features

29. Turning to subjective matters, because the applicant is an unreliable and very reticent historian, little was known about him (other than his mental conditions, which I shall discuss in a moment) at the time of sentence, and little is known by this Court. No updated material was placed before this Court on “the usual basis” on the contingency of the appeal succeeding.

30. It is known that the applicant pleaded guilty to all offences in the Local Court, and is therefore entitled to a 25% discount on all of them. I also accept on balance that: he is now aged in his late 30s; that he was born in Australia of Polynesian background; that he did not enjoy an upbringing of privilege or ease; and that he has fathered at least one child.

31. It is also clear that, before the commission of these offences, the applicant possessed a criminal record for repeated violence that commenced well over 20 years ago, when he was a child; that he had been subjected to bonds, suspended sentences, intensive correction orders, and short periods of imprisonment as a result; that all of those sentences had been imposed in the Local Court; and that he was on conditional liberty at the time of these offences, in the form of parole for the offences of intimidating police in execution of their duty, resisting or hindering police in the execution of their duty, and destruction of property.

32. By far the most important subjective feature is that the applicant suffers from chronic schizophrenia, for which he has been treated, including by medication, for many years. His symptoms have included paranoia, hallucinations and poverty of thought. He also suffers either from a mild intellectual disability (the misleading nature of the adjective is well-known), or cognitive deficits arising from his schizophrenia; in my opinion, the precise aetiology of his intellectual limitations is of little moment. He has been an inpatient more than once in a psychiatric hospital. For a time, he was in fact unfit to stand trial on these charges as a result of his mental conditions. All of that is amply established on balance, as the detailed opinions and histories of treatment contained in many reports summarised in the remarks on sentence show.

33. In my opinion, the irrational, wanton violence of the applicant on the evening in question can readily be thought to be connected with his mental conditions, at the least indirectly. I further accept on balance that his mental conditions have played an important role in his interactions with the criminal justice system over the past many years. In short, his mental conditions are a significant mitigating feature of the matter.

34. As well as that, no doubt his incarceration since arrest that evening has been made even more difficult than otherwise by the restrictions born of the pandemic since March 2020, as well as the notorious difficulties that mentally unwell people often experience in custody.

35. The final matter to be taken into account on resentence is that other offenders were dealt with by the courts as a result of the events of that evening, so that, on resentence, one needs to reflect upon parity. But all of those offenders were dealt with for far fewer offences, and all of them received sentences that did not feature full-time imprisonment (though one spent quite some time in prison on remand). For that reason, I share the opinion of her Honour that parity has little role to play here.

Instinctive synthesis

36. In short: this was an unprovoked, frightening escalation of serious violence that resulted in injury to a number of police officers, physically and psychologically. The most serious offence, dealt with substantively, pertained to the infliction of grievous bodily harm and carried a maximum penalty of 12 years’ imprisonment, with a standard non-parole period of five years. The offences were committed by a person who had committed many offences of violence in the past, with the result that he could not and cannot be afforded leniency on the basis of prior good behaviour. The applicant was on parole at the time, a significant aggravating feature.

37. On the other hand, the applicant suffers from a serious, chronic mental illness, along with intellectual deficits, that reduce his moral culpability. They also make it less appropriate to use his sentence to express general and personal deterrence. They also have made and will make, I believe, any period of incarceration more difficult than it would be for a person who is completely mentally well. He accepted his guilt at an early stage, and that can be reflected not only by the necessary utilitarian discount on the indicative head sentences, but also, in my opinion, by way of some subjective mitigation.

38. The threshold has certainly been crossed whereby a sentence of full-time imprisonment is the only appropriate option here; counsel for the applicant did not submit to the contrary.

39. Furthermore, the starting date of the aggregate sentence adopted at first instance (which reflects a discretionary judgment about some time spent serving balance of parole) was not impugned, and I adopt it myself.

40. I also consider, as an exercise of my own judgment, that the marked alteration to the statutory ratio between aggregate head sentence and aggregate non-parole period adopted by her Honour should be replicated.

41. As for indicative sentences, exercising the sentencing discretion afresh, and on some occasions arriving at slightly different determinations from her Honour, I provide the following starting points and ultimate outcomes after discount (rounding down any portion of an incomplete month that results, because the law does not concern itself with trifles).

42. For sequence 2, a starting point of 7 years, leading to an indicative head sentence of 5 years 3 months, with a non-parole period of 2 years 6 months. For sequence 3, a starting point of 2 years 6 months, leading to an indicative head sentence of 1 year 10 months. For sequence 5, a starting point of 2 years 6 months, leading to an indicative head sentence of 1 year 10 months. For sequence 6, a starting point of 2 years, leading to an indicative head sentence of 1 year 6 months. For sequence 8, a starting point of 1 year 6 months, leading to an indicative head sentence of 1 year 1 month. Finally, for sequence 10, a starting point of 1 year, leading to an indicative head sentence of 9 months.

43. Exercising the sentencing discretion completely afresh, however, and seeking to balance up all of the objective and subjective factors that I have recounted, I believe that the aggregate head sentence should be somewhat shorter than it was at first instance. I consider that the appropriate aggregate head sentence is one of 7 years, with a concomitant non-parole period of 3 years 6 months.

Proposed orders

44. I therefore propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal against sentence allowed, and aggregate sentence imposed at first instance quashed.

3. In substitution, an aggregate head sentence of imprisonment for 7 years is imposed, to commence on 3 November 2019 and expire on 2 November 2026.

4. An aggregate non-parole period of 3 years 6 months is imposed, to expire on 2 May 2023.

5. The first date upon which the applicant is eligible for possible release to parole is 2 May 2023.

45. McNAUGHTON J: I agree with Button J.

    Usaia Sentencing Diagram (339214, pdf)

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Decision last updated: 24 March 2023